Chapter I: Penal Methods of the Middle Ages (1)

Prisons as places of detention are very ancient institutions. As soon as men had learned the way to build, in stone, as in Egypt, or with bricks, as in Mesopotamia, when kings had many-towered fortresses, and the great barons castles on the crags, there would be cells and dungeons in the citadels.[1] But prisons as places for the reception of “ordinary” (as distinct from state or political) criminals for definite terms only evolved in England many centuries afterwards[2]; whilst imprisonment as a punishment in itself,[3] to be endured under rules made expressly punitive and distressful, may be described as essentially modern, and reached its worst phase in the nineteenth century.[4]

The Teutonic Tribes of the bays and forests were fierce and free. They exemplified, in fact, the theory of Nietzsche, that liberty cannot be granted but must be taken.[5] They had not cowered before Oriental superstitions,[6] and as they lived in widely scattered hordes a central government could not impose its yoke upon the savage warriors. With the wild clansmen of the fierce Norse nations, where every man was always ready armed[7] and boys received their weapons at fifteen,[8] the great desideratum was the maintenance of peace.

The instinct of retaliation throbs in all men, and vengeance swift and bloody would be sought for, which, where the kindred ties were close and strong, might spread a feud through villages and clans, such that the very children might be born devoted to the duty of a family revenge. The Teutonic nations, like the free peoples they were, always assumed that for a crime to have been committed, an individual must have suffered injury.[9] And they conceived the aggrieved plaintiff as no cowed weakling (or he would not have counted), but as a fighting freeman with spear and shield, who would repay a wrong with interest, and whom, if slain, his kinsmen would avenge.

Thus the placation[10] of the injured party was the objective of the oldest laws. Allowance was made for human feelings[11] and impulses. Some ancient codes[12] permitted him like for like; an eye for an eye, and a tooth for a tooth, in the sense of so much, and no more.[13] But the Teutonic laws offered him compensation,[14] and, when it was possible, compelled him to accept it.[15] Thus crimes were met by restitution, not by punishment.[16]

Every sort of injury which one freeman could do to another was first of all atonable by bōt (a money compensation paid to the injured man or his relations).[17] What this fine was depended firstly upon the nature and extent of the damage done, and secondly upon the rank and importance of the person injured.[18] For every man had his class and value; and every form of aggression against a freeman, from a wound which killed him outright to a blow which deprived him of a single tooth,[19] as well as the theft of anything he possessed, had its appointed fine according to his wer.[20]

The tariffs varied with the different tribes,[21] but the main principle—of compensation—extends through all. In Mercia the wer-gild of a king was fixed at 7200 shillings or 120 Mercian pounds of silver,[22] to which great sum was added the cynebot of a similar amount which was payable to his people.[23] The wer-gild of a thane (_i.e._ county magnate) came to 1200 shillings, that of a ceorl (labourer) was 200 shillings.[24]

These murder-fines, however, were much heavier than they look;[25] those of the kings,[26] numerous as they were, would in most cases have been hopelessly unpayable by private people, and those of the thanes by humble families. Even the wer-gild of the ceorl, or labourer, which was 200 scillings, or about four pounds, was not inconsiderable when we remember that in Æthelstan’s time one scilling would buy a sheep, and six scillings (or thirty pence)[27] an ox—the cost would be the price of a small herd.[28]

So that frequently the man-fines[29] were never paid, and then we perceive that the wise compensation system of the codes arose more out of the fear of the vendetta than from humane principles;[30] if they were not paid, vengeance would be let loose.

If the offender were not slain or abused,[31] if he did not escape and live as an outlaw and a “wolf’s head”[32] (which was frequently done,[33] for there were some ten men outlawed[34] to every one hanged[35]), he might be sold[36] as a wite theow[37] into penal slavery.[38] For there were slaves as a class in Christendom and in England up to the twelfth century,[39] and they being helpless, like our “submerged” masses, were of little account at all in the community.

Derived mainly from the conquered taken in wars and raids,[40] their ranks were recruited by men sold for their offences, and likewise, it is said, from those who sold themselves in times of starvation;[41] many were sent as slaves beyond the seas,[42] and the fact that we find this custom repeatedly prohibited[43] testifies also to its prevalence.[44]

From the poor slaves there need be no fear of vengeance or retaliation; they were a voteless minority amidst Saxon freemen. If a slave were slain only eight shillings were payable to his kinsfolk,[45] while a man-bōt of thirty shillings was claimed by his master.[46] And that, it would seem, was all on the part of the State.[47] The Church, however, to its credit, imposed a penance, a two years’ fast.[48] Other injuries to the theow (slave) were treated with proportional mildness,[49] but of Church laws and discipline I shall have to speak presently.[50]

For the damage done by his slave the master was liable,[51] as for a trespass by his cattle.[52] For the more serious offences the theow would be handed over to the kinsfolk of the injured party, unless perchance his master should redeem him by payment.[53] If upon accusation he failed at the ordeal, he was to be forthwith branded the first time;[54] but the second conviction would be capital, “seconda vice non compenset aliquid nisi caput.”[55]

Apart from legal or revengeful penalties for wrongs done to any freeman,[56] the theow was absolutely at the mercy of his master.[57] If he were not allowed to “redeem his hide” by such small compensation or atonement of which he was capable, he might have one leg fastened by a ring to a stake, round which he would be lashed with a three-thonged whip.[58] It was composed of cords knotted at the ends.[59] If a ceorl were goaded into homicide, vengeance might then be taken upon six of his kinsfolk[60] (upon the principle that the thane had six times his value,[61] see wer-gilds, _ante_, and Maitland, _Domesday Book_, p. 53). If a theow killed his lord[62] he was to perish in torments;[63] for revenge was sweet,[64] and the strong took it without stint.[65]

Clearly, then, from the nature of early Saxon society, elaborate penal machinery had no place. The freemen atoned for their transgressions with fines when possible, and by slavery, mutilation, outlawry, or death when they could not pay. Cruelly as the slaves might be flogged or slaughtered, there were no prisons in the land even for them.[66] The villages were mere groups of wooden homesteads with barns and cattle sheds surrounded by rough stockades and destitute of roads or communications. Even the palace of the king was a long wooden hall with numerous outhouses, for the English built no stone houses and burnt down those of their Roman predecessors.[67]

The Teutons, according to Tacitus, abhorred walled towns as the defences of slavery and the graves of freedom. The Frisians forbade the construction of any walls more than 12 feet high.[68] In the course of time the crown, or central government, grew in power; the king, and even the great lords, spiritual and temporal, were able to enforce obedience and order, at any rate upon those in their neighbourhood.[69] The royal authority could defy the vendetta, and from very early times had claimed a share in the compensation,[70] so that, along with the wer-gild, payable to the injured party, the wite, or additional fine, had to be paid to the sovereign (or overlord) for the disturbance of his peace.[71]

Sometimes he would take vengeance for the State or for an aggrieved person.[72] Thus in the reign of Æthelstan a man might forfeit his hand for coining, and have it nailed over the door of the mint;[73] and in the reign of Cnut a woman might lose her nose and ears if she committed adultery. In the early period these mutilations appear to have often been intended to be mortal, for in the laws of Alfred and Guthrum we read that “If a malefactor, having forfeited himself, has had a limb cut off, and, being left to himself, survive the third night; afterwards he that is willing to take care of his sore and soul may help him with the Bishop’s leave.”[74]

But the maimed criminals were also allowed at large to be a living warning to others. That the Saxons could be cruel enough when bōt was not made, and to habitual criminals and slaves, we have seen already; how barbarous the amputations were may be gleaned from the words of our Danish monarch: “... At the second time let there be no other bōt if he be foul” (at the ordeal) “than that his hands be cut off or his feet, or both according as the deed may be, and if then he have wrought yet greater wrong, then let his eyes be put out, or his nose and his ears and the upper lip be cut off; or let him be scalped ... so that punishment be inflicted and also the soul preserved.”[75]

William the Norman enjoined that offenders should not be slain outright, but hacked about.[76] “Interdicimus,” he commands, “eciam ne quis occidatur vel suspendatur pro aliqua culpa sed enerventur oculi, et abscindantur pedes vel testiculi, vel manus ita quod truncus remaneat vivus in signum prodicionis et nequicie sue.”[77]

About the tenth century, after the ending of the Danish troubles, and in the eleventh under the Norman rule, the king was strong enough to extend his power and protection.[78] In the twelfth the old system of bōt and wer, designed to compensate the injured and keep the peace among a fierce and warlike race of freemen,[79] began to give place to one under which the king exacted punishment and tribute,[80] which he administered and collected through itinerant judges, sheriffs, and other officers.[81]

The heavy fines imposed on places and people[82] became an important source of revenue to the crown[83] and to the barons and the lords of manors[84] when they held rights of private jurisdiction[85] (Sake and Soke, Courts Leet,[86] etc.), which were frequently delegated.[87]

The State was growing strong enough to take vengeance; the common man was no longer feared as had been the well-armed Saxon citizen of old, and to the “common” criminal was extended the ruthless severity once reserved for the slaves.[88] Then likewise Glanville and the lawyers,[89] under the influence of Rome and Constantinople, drew a sharp and arbitrary distinction between the criminal and the civil pleas, and the idea of compensation began to wane before the revenge instinct now backed by power. If there was money obtainable, the king’s judges would seize it;[90] the idea of damage done to the individual was merged and lost in the greater trespass[91] alleged to have been committed by the offender against the peace, against the code and king.

Up to the middle of the twelfth century[92] some counties were without public gaols or prisoners’ cages,[93] and Henry II. commanded their construction at the Assize of Clarendon, 1166. By the seventh article[94] gaols were to be made in the walled towns or erected within royal castles[95] with the king’s timber or other wood that might be available.[96] They were evidently light improvised structures[97]—sheds knocked up beneath massive walls of city or castle. The king’s strong places or the larger monasteries would be prisonous enough with little alteration. These early prisons of the Angevin kings were collecting depots or remand prisons for the safe custody of persons accused. Bracton, who died in 1268, expressly wrote that prison was to confine and not to punish.[98]

Bishop Britton[99] (thirteenth century) says that only those accused of felony were to be kept in irons, and none were to be ill-treated except according to sentence. In the _Mirror of Justice_ we read that “every common prison[100] is a gaol, and only the king has the keeping of it[101]; every other man’s prison is private, etc.; and because it is forbidden that any one be tormented before judgment, the law wills that no one be placed among vermin and putrefaction, or in any horrible or dangerous place, or in the water, or in the dark, or any other torment; but it is lawful for gaolers to put fetters upon those whom they suspect of trying to escape, but the fetters must not weigh more than 12 oz....”[102]

The captives having been collected together within the gaols would have to wait till the next assize. It might be a long time—months (as even now) or years[103]—for the king’s judges were dreaded—and of those who could not get mainpernors (bail),[104] many would die of want or disease before the justices were ready to try them.

Meanwhile the prisoners and their families were to be kept at their own expense; according to Bishop Britton[105] the gaoler was required to take nothing from the poor—who would in general possess nothing to be taken—and not more than fourpence for the keep of any prisoner.[106] None were to be detained from inability to pay the fees. Such were the rules approved by Edward I. In practice, it appears probable that, for the next five hundred years or so, the prisoners would be well fed if they had means, and might be starved to death if they had not.[107]

Those who survived until the opening of the court would be brought up, according to Bracton,[108] with their hands free, though sometimes in leg-irons. We find the description amplified by Britton;[109] they were to be “barefooted, uncoifed and bareheaded, in their coat only, without irons of any kind,[110] so that they might not be deprived of reason by pain, nor be constrained to answer by force.”[111] But thus far no punishments had been meted out; these followed upon conviction, and were of a physical and sanguinary character.

According to Bracton an offender might be broken on the wheel for treason, a crime so great that it was scarcely to be permitted that the relations should live.[112] For the “common” criminal there was hanging,[113] and the ghastly mutilations enjoined by the Norman kings were continued; indeed they were made more savage for many offences after 1176.[114] Up to the reign of Henry III. the penalty for poaching in the king’s forests was death or the loss of eyesight.[115] Rape up to the reign of Edward I. might also involve loss of eyes and emasculation.[116]

Stealing from a dwelling appears to have met with the same barbarous punishment. A glimpse of the gentle ways of twelfth-century “justice” is revealed in an account of a supposed miracle. A certain Ailward, being accused of housebreaking (committed apparently under considerable provocation to recover a debt), was lodged for some time in Bedford Prison.[117] After having failed in the water ordeal and being convicted, he was taken out to the usual place of punishment, where his eyes were blinded, he was mutilated, and the parts were buried in the ground. He is said to have been restored through St. Thomas of Canterbury.

By the time of Edward I. we begin to arrive at sentences of imprisonment, and read of such penalties as one year and then a fine, or two years in default of fine, in the first Statutes of Westminster. For such offences as carrying off a nun, allowing a prisoner to evade prison, or stealing tame beasts out of parks, a sentence of three years might be awarded besides the customary fine. As we have seen, the profits of “justice” were highly regarded; the fines were precious perquisites of the Crown (and sometimes of subordinate administrators and officials as well). The prisons were used as “squeezers” to extort them. “Imprisonment,” say Pollock and Maitland,[118] “was, as a general rule, but preparatory to a fine. After a year or two the wrongdoer might make fine; if he had no money he was detained for a while longer. In the thirteenth century the king’s justices wield a wide ‘common law’ power of ordering that an offender be kept in custody. They have an equally wide power of discharging him upon his making a fine with the king.”

In Henry III.’s reign “The wrongdoer but rarely goes to prison, even for a moment.[119] On the plea roll the _custodiatur_ which sends him to gaol is followed at once by ‘Finem fecit per unam markam’ (or whatever the sum might be), and then come the names of those who are pledges for the payment. The justices do not wish to keep him in prison; they wish to make him pay money.” The authors just quoted say that the fines were generally light, and give several instances[120]—it doubtless depended much upon the judges and the reign. But wherever there are enclosing walls, there are certain to be abuses behind them.[121] Judicial and administrative scandals kept on occurring.[122]

In the fourteenth century many persons are said to have perished of hunger and thirst,[123] and many died in prison about the time of the Black Death (1349).[124] Into the fifteenth century the complaints continue; we read the following in the _Liber Albus_:[125] “Whereas great outcry has been made heretofore as to many wrongs and misprisons done by the gaolers of Newgate and Ludgate and their officers and servants, ...” and new regulations were made (and no doubt broken, as the others had been) respecting fees the prisoners should pay.

The sixteenth century showed no advance in the matter of humanity.[126] Torture, which, legally or illegally, has always been a ready trick of statesmen, developed after 1468,[127] and under the Tudor sovereigns the rack was ever creaking to extort confessions. The “common” criminals were treated with the utmost severity; in 1530 an Act was passed by which all poisoners were to be boiled alive.[128] Burning was the penalty appointed for heresy, high and petty treason[129] (_i.e._ murder of a husband by a wife, murder of a master or mistress by a servant,[130] and several offences against the coin), and, unlike the punishment of boiling, continued legal until 1790.[131] The right hand might be taken off before hanging for aggravated murder, or a man might be hung in chains and left to perish.[132] There was the drawing and quartering in some executions, and ordinary hangings were exceedingly numerous.[133] Men lost their hands for exporting sheep and for libel,[134] and there was branding, etc., for perjury, and sometimes for persistent vagrancy.[135]

A picture of the prisons has been left us in a work of 1545. “I see,” observes the monk whose complaint[136] is given, “also a pytyful abuse for presoners. O Lord God, their lodging is to bad for hoggys, and as for their meat it is euil enough for doggys, and yet, the Lord knoweth, thei haue not enough thereof. Consyder, all ye that be kyngs and lordys of presons, that inasmoch as ye shut up any man from his meate, ye be bound to giue him sufficyant fode for a man and not for a dogge.” He further declares that the charges were greater than any at the “dearest inn in Ingland,” and says that men lay six and seven years in prison before the oncoming of their case.

About the year 1552 the City authorities selected what had been a palace at Bridewell[137] (given by Edward VI.) for (among other purposes) locking up, employing, and (as heretofore, according to Holinshed) whipping beggars, prostitutes, and night-walkers of all sorts.[138] Later on similar detention places were also called Bridewells, after the first one at Blackfriars just alluded to. In 1597 they planned Houses of Correction,[139] and in 1609 it was ordered that they should be builded in every county.[140] Though they became, in practice, one with the common gaols, they lasted at least in name till 1865.[141] But to resume our survey of ordinary prisons. The seventeenth century affords the usual evidence of what walls can hide. The gaolers, as of old, appear to have been all powerful;[142] sometimes friendly, often the reverse, always extortionate. John Bunyan, during his twelve years’ incarceration, was allowed to work for his family—for a large part of the time in tolerable surroundings; but while in the Gate House prison he was charged huge fees.[143] The prisoners hung collecting bags out of their windows on Sunday mornings.

George Fox,[144] the Quaker, agreed with the keeper and his wife for meat and drink, chamber, and other accommodation at a certain rate. But he refers to one of their party being put “down in the Doomesdale[145] amongst the felons,” and this, it appears, was a “noysome, filthy, stinking hole, where was a puddle of ... and filth over their shoes and the ... of the felons, and straw almost broken to chaffe with their long lying thereon and full of vermin, wherein is neither chimney nor easing house.” Confirmatory evidence as to how felons fared in 1667 may be deduced out of a Statute of Charles II.[146] “Whereas,” it says, “there is not yet any sufficient provision made for the relief and setting to work of poor and needy persons committed to the common gaol for felony and other misdemeanours, who many times perish before their trial, and the poor there living idly and unemployed become debauched and come forth instructed in the practice of thievery and lewdness,” etc.

The excellent plan was proposed that the profits of the prisoners’ labour should be placed to their relief. But to find useful labour within prison walls has always been a most difficult problem, and the world outside was always far too busy to see to it. The prisons of the eighteenth century were very much like those that had been before, but perhaps we know more about them through the great work of John Howard, _The State of the Prisons_. It is a matter of history how that grim, conscientious Puritan went where the ruling classes neither cared nor dared to venture.[147] For, besides the dreadful stench which stuck to his notes and garments, deep in the windowless (window tax), airless rooms and dungeons through which he went, down in the stale, cramped yards[148]—when there were any—without space or sun, and in which even the supply of water was mostly beyond the bounds and so inaccessible,[149] rising amidst the putrefaction of those places, there lurked the dreaded typhus or gaol fever.

It had always been about since prisons were used, and sometimes proved the Nemesis of neglect.[150] In 1522, at the assize in the castle at Cambridge,[151] many of the knights and gentlemen attending caught the infection from the “sauor of the prisoners or the filthe of the house.” Writing of the year 1577, we read in _Baker’s Chronicle_:[152] “About this time when the judges sate at the Assize in Oxford, and one Rowland Jenks, a bookseller, was questioned for speaking opprobrious words against the queen, suddenly they were surprised with a pestilent savour, whether rising from the noisome smell of the prisoners or from the damp of the ground is uncertain; but all that were present, almost every one, within forty hours died.” Much the same happened at Exeter in 1586[153] and at Taunton in 1730, and some hundreds perished at both these places.

Thomas Allen, in his _History of London_,[154] relates that in 1750 “The Lord Mayor, some of the aldermen, two of the judges, the under sheriff, many lawyers, and a number of lookers-on, died of the gaol distemper.” The prison was afterwards cleansed! Howard asserts that in 1773–4 more people died from the gaol fever than were executed in the kingdom;[155] we lost 2000 sailors (criminals were often given the choice between punishment and the services) with the fleet in the war with America.[156] He quotes Lord Bacon as saying that the most pernicious infection next to the plague is the smell of the jail.[157] Such were the mephitic dens into which were cast men, women, and children of all sorts; and there they would rot away or survive, as the case might be, until the expiration of their (generally short) sentences of imprisonment, if they could pay the fees charged on their coming out; or until they ultimately came up for trial, after which they would either be acquitted and discharged (again when they paid the fees), or they would be convicted and transported or executed.[158]

The number of capital offences was truly enormous. Onward from 1688 they steadily increased,[159] owing, as has been well remarked, to the “unhappy facility afforded to legislation by Parliamentary government.”[160] Members who could not become ministers, and who yet wanted to do something, often had interest enough to hang somebody, or at least to get a law passed creating a new capital felony.[161]

Thus through the ambitions of private members and the general callousness of the ruling class, the number of capital offences kept ever growing, until, in theory, there were more than two hundred of them.[162] The law, however, had overreached; rough and often most brutal as the people of that day were, they would not enforce the penalties provided,[163] so that the hangman’s ministrations were invoked for only twenty-five classes of offences in London,[164] and for not more than thirty throughout England.[165] In fact, it was found that conscientious people refused to prosecute for the lesser crimes, dreading to have a share in taking life. But actually the gallows load was heavy; an instance appeared in a _Times_[166] paragraph—18th January 1801—which tells how a certain Andrew Branning, a luckless urchin aged only thirteen, had broken into a house and carried off a spoon. Others were with him, but they ran away, and only he was captured and brought to trial. His story ended in two words, which were short and customary: Guilty—Death. Thus transportation and the extreme penalty kept clearing the prisons, but those within them were the while exploited, being entirely the prey and property of warders, keepers, and assistant gaolers, all of whom made the most of their positions—which might be given out like pensions or be purchased[167]—to wring out fees[168] and make their places pay;[169] and having what amounted to unlimited power, and being, by the nature of their office, used and inured to witnessing suffering, the gaolers,[170] from the beginning and right into the eighteenth century, shrank from no means, however mediæval, by which they could extract their fees and charges.[171] Thumbscrews and iron skull-caps were sometimes used,[172] and were produced in court as evidence.[173]

Prisoners might be loaded with heavy irons unless they would pay to be allowed lighter ones.[174] They were liable to be flogged with ropes or whips or anything that came handy,[175] the common instrument of flagellation, however, being the formidable _membrum tauri_.[176] They might be kept in damp dungeons and darkness; the living were sometimes locked up with the dead. They could be set apart and purposely exposed to utter starvation,[177] gaol fever, and small-pox, or actually done to death by their keepers’ violence.[178]

The prisoners were robbed for room, squeezed for food,[179] and dealt with for drink of all kinds, spirits, and tobacco, in which the officials did a roaring trade.[180] Lastly, the new arrivals at a prison were fleeced and pillaged by their fellow gaol-birds for “chummage” or “garnish” money,[181] and failing this, they were frequently stripped of their very clothing, a process termed “letting the black dog walk.”[182]

And in all these vile places there was generally no production of anything. The prisons and Bridewells were supposed originally to set rogues to work,[183] but the authorities took no trouble to organise it, and throughout the detention-places useful employment (if we except occasional work done for the gaoler, or permitted in particular instances) was impossible. It was found in 1818,[184] that, out of the 518 prisons in the United Kingdom, in 445 there was no employment, and that in the remaining 73 it was of the slightest possible description. Such were the bad old prisons of the past. Their faults were many, glaring, and obvious, but they had yet a human side, too, and a better one. Though the idiot might be laughed at and the new-comer despoiled, though the keepers might be brutal and the atmosphere poisonous, still in the midst of evil there would be individual acts of kindness and self-sacrifice. If the captives were in chains and rags,[185] they were not cut off from the outside world or striped and spotted in a livery of shame.[186] If gaols were hotbeds of infection and cesspools of corruption,[187] at least they were not the ghastly whited sepulchres which were built in the nineteenth century.

MITIGATIONS AND PECULIARITIES

So far we have endeavoured to trace the course of the usual punishments inflicted in various ages on the “common” criminals when they were brought up charged with the graver crimes. There were, however, ways of escape open, which are sufficiently general and important to be dealt with separately.

_The Ordeals._—The invocation of miraculous guidance, to determine the guilt or innocence of a person accused, has been resorted to from time immemorial by all manner of methods throughout the four continents.

There were many ordeals in mediæval England. There was the corsned, or consecrated barleycake, which was supposed to choke a perjurer if he tried to swallow it; when mouth and throat were dry from fear or excitement this was quite possible. There was a test by immersion, in which the accused had to sink two ells deep—over seven feet. A rope was attached round the body, and it is interesting to notice that Archbishop Hincmar (ninth century) gave express directions for the rescuing of those who, by thus sinking, were declared to be innocent.[188] There was a test tried with hot water, in which a stone had to be picked up out of boiling liquid without the arm being scalded. There was a test, to pass which the hand had to be inserted into a glove of hot iron without being burned by it. There was a test in which the suspected person must walk through flames without being scorched. There was a test which consisted in having to walk over nine red-hot ploughshares, blindfolded and unseared.[189]

Perhaps, however, the best-known ordeal was that which was worked out with a heated iron bar or ring.[190] This generally weighed three pounds, and had to be carried—they were always personal and picturesque in the middle ages—for a distance of nine times the length of the bearer’s foot.[191] His hand was then bound up and left alone for three days.[192] At the end of these it was examined, and if found clean and free from suppuration[193] the accused was acquitted.

Doubtless, in deeply superstitious times the ordeals, with their solemn prayers and incantations, were fairly effective. But yet they do not seem to have been altogether trusted, at any rate in the later period,[194] since even those who passed successfully through them were obliged to quit the country within forty days.[195] Most people, however, who underwent ordeals had been arraigned by twelve knights of the county (who thus resembled a Grand Jury) and were already under grave suspicion;[196] the ordeal, then, could only say not proven. Moreover, it would appear from various sources that the tests and trials were frequently tampered with,[197] the elaborate ritual giving plenty of opportunity;[198] at least one king scoffed at priestly acquittals.[199]

After incurring the disapproval of many Popes, the ordeals were condemned at the fourth Council of Lateran in 1215, and by the eighteenth canon priests were forbidden to pronounce their blessing upon them.[200] The ordeals were abolished in England in the reign of Henry III. and the juries took their place.[201]

Another species of ordeal, and certainly another means of escape from the criminal law, was the wager of battle. This very ancient mode of trial[202] was introduced into England by the Normans under William I. If a man made a charge against another, and proofs of guilt were not obvious and overwhelming, the latter could demand trial by battle,[203] unless the complainant were over sixty years old or were sick and infirm,[204] or laboured under some physical disability,[205] in which case he might choose the ordeal.[206] Priests, infirm persons, and women might have champions to represent them.[207] The knights fought with their usual weapons,[208] the plebeians with staves forty-five inches long, which were tipped with iron heads shaped like rams’ horns.[209] They were to be bareheaded, barefooted, and close-shaven; and so they fought till death or surrender,[210] at first with the clubs, and afterwards, failing them, in hideous grapple, killing as best they could. If the accuser were defeated he could be committed to gaol as a calumniator,[211] but was not to lose life or limb; he was, however, fined sixty shillings and lost civil rights.[212]

If the person who was accused—were he knight or peasant—yielded, he was then forthwith hanged or beheaded as being guilty.[213] If, however, he prevailed in the combat or defended himself till the stars came out,[214] he might leave the field as being acquitted,[215] unless, perchance, the justices desired to put him on trial for something else, which they occasionally did.

The custom of trial by battle, along with all other kinds of ordeals,[216] dropped out of practical usage during the thirteenth century,[217] but continued the law for five hundred years afterwards. In 1818 it was recalled into action.[218] One Abraham Thornton was strongly suspected of having outraged and murdered a girl, Mary Ashford. Although he was acquitted when tried by a jury, he was immediately accused by her brother and heir-at-law, and claimed to defend by the wager of battle. The fight was refused by the plaintiff, and shortly afterwards there was passed “An Act to abolish Appeals of Murder, Treason, Felony, or other Offences ... and Wager of Battel,”[219] so it could not be claimed again.

Another haven of refuge from the clutches of the State was found within the pale of SANCTUARY. Although, like prayer or sacrifice,[220] existing round the globe from the beginning, we may confine ourselves to Christian shelters, as they alone affected our laws.

The early Church doubtless afforded refuge as soon as it possessed the power to do so, and gave asylum from the reign of Constantine.[221] Laws were made on the right of refuge by Theodosius in 392,[222] boundaries of sanctuary were extended by Theodosius junior in the fifth century,[223] while many kinds of offenders were debarred from it under Justinian (483–565).[224]

The saving power of sanctuary[225] would seem to have been but feeble and tentative in the earlier period, since debtors to the State, Jewish converts who were debtors, heretics and apostates, the slaves of orthodox masters (the slaves of heretics and heathens obtained their freedom[226]), and persons guilty of the more serious offences, were refused privilege.[227]

But the protection of the mighty Roman Church was to be something more than a mere respite for the lesser grades of offenders. In the year 511 a Council of Orleans[228] ordered that criminals who sought refuge in a church or house of a bishop should not be dragged forth from it. Even the slave given up to his master was not to be hurt by him. About a century later Pope Boniface V. (619–625)[229] commanded that none who had taken refuge should be abandoned. The same spirit is found in the _Decretum Gratiani_ compiled in 1151. Pope Innocent III., in a letter written in 1200,[230] ordered that only night robbers, bandits, and persons doing violence within the church should be given up.[231] And this we find reaffirmed by Gregory IX. in the year 1234.[232] In 1261 Boniface, Archbishop of Canterbury, in his Constitutions[233] expressly forbade that any obstacle should be placed in the way of food being brought to such as were in a sanctuary—so much had the Church increased in power since Alfred’s time—and that any should be molested who, having taken it, had forsworn the country.[234]

The exiles to whom this thirteenth-century archbishop alludes were persons who had fled into churches, where they could then claim refuge for forty days.[235] The buildings were watched that no one should escape, and if a man got away the parish was fined. At the end of this period the refugees must surrender,[236] but they might make an oath before the coroner admitting their guilt, and also promising to quit the realm. A road and port of destination were then assigned them,[237] and they might travel thither “with a wooden cross in their hands, barefooted, ungirded, and bareheaded, in their coats only.[238] And,” said the king, “we forbid any one under peril of life and limb to kill them so long as they are on their road pursuing their journey.”[239] But they would forfeit goods and chattels if they had any.[240]

Under the masterful tyranny of Henry VIII. it was held that too many British subjects escaped this wise, and it was enacted in 1530[241] that those who had taken sanctuary should not leave the realm, but should be sent to one of the privileged places (if it were not full, which at that time meant if it contained not more than twenty people), there to remain as sanctuary persons for the rest of their lives; and they were also to be branded on the thumb.[242]

The great sanctuaries comprised Westminster Abbey, and at least thirty other celebrated monasteries,[243] amongst which were St. Martin-le-Grand, Beverley, Hexham, Durham, and Beaulieu, which possessed special charters and immunities.[244] Though traitors, Jews, infidels, and those guilty of sacrilege were not to be received, and though even the peace of a minster might, in the strifes of State, be broken through as in 1398, or evaded as in 1483, yet those within were generally safe from all men. A follower of Jack Cade[245] was protected against the king, and even one of the murderers[246] of the little princes in the Tower found refuge in St. Martin’s Sanctuary.[247]

There were whole colonies of these fugitives round the great abbeys already mentioned. “The right of asylum,” says Dean Stanley,[248] “rendered the whole precinct a vast Cave of Adullam for all the distressed and discontented in the metropolis who desired, according to the phrase of the time, to take Westminster.” But the power of the State increased more and more, and the dominion of the Church was sapped away.[249] In 1483 King Henry VII. obtained a Bull from Innocent VIII. which allowed malefactors to be taken from the sanctuaries if it were proved that they had sallied out from them to commit crimes. In 1504 he procured a Bull allowing him to take out persons suspected of treason. In 1534 King Henry VIII. said that lese-majesty was treason, and deprived those guilty of privilege.[250] In 1535 sanctuary persons were forbidden to carry weapons or to go out between sunset and sunrise.[251] In 1540 many sanctuaries were extinguished, and several offences, such as wilful murder, rape, burglary, and arson, were excluded from privilege.[252]

The sanctuary at the Abbey was broken up in 1566,[253] and doubtless all the others came to a sudden end upon the dissolution of the monasteries. In 1604 the old rules and laws about sanctuaries were repealed.[254] In the year 1623 all rights of refuge were taken away.[255] The idea lingered in the popular imagination, however, and in 1697 it had to be pointed out by statute that arrests for debt could be made in “pretended privileged places.”[256] These districts (such as the Mint, Suffolk Place, etc.) were alluded to again in 1722,[257] and likewise in 1724[258] as regards Wapping, Stepney, in Middlesex—more than a century after legal abolition.

Yet another way was open to people of good position or repute by which they could extricate themselves from the ordinary course of law[259] (but not against the suit of the king, and there were also other limitations), and that was by means of formal COMPURGATION. We have seen that in Teutonic communities the oath of a slave had no legal value, while the oath of a thane was worth those of six labourers. Thus kings and bishops might sometimes rebut accusations by means of their word alone.[260] The Visigoths allowed an accused person (of credit) to reply in this manner,[261] but the practice was condemned by the Church as inciting to perjury.[262]

The usual course[263] was for the accused to obtain eleven or twelve compurgators[264]—relations, neighbours, or fellow-craftsmen who would swear with him to the justice of his cause.[265] Perjury was indeed often suspected in these compurgations, and if a man of bad character got his co-witnesses[266] (and if he could not he was generally sent to the ordeal) he was frequently banished in spite of their testimony.[267]

In the beginning of the thirteenth century Pope Innocent III. modified the oath,[268] and afterwards witnesses swore only to character, to their belief in the accused’s credibility. Compurgation appealed especially to the clergy,[269] and was even called the _Purgatio Canonica_.[270] Cut off by their calling from all lay connections, they could rely the more upon their own brethren. It was by solemnly swearing with twelve priests as compurgators that Pope Leo III. elected to clear himself from certain accusations, in the presence of Charlemagne (in A.D. 800);[271] and in 803 that emperor ordered priests to defend themselves by taking an oath with three, five, or seven compurgators. The practice began to decline towards the close of the twelfth century,[272] but still lingered on into the sixteenth century in England, and in isolated cases to later times. The Wager of Law was not formally repealed till 1833.[273]

THE RULE OF THE CHURCH

The Christians had always been an exclusive body of people, at first from fear, and afterwards from fanaticism. They excommunicated all offending members, thus not only cutting them off from fellowship, but also depriving them of those rites which in their creed were necessary for salvation. This custom of excluding from communion was from the first a formidable spiritual weapon among believers; what it became when the Christians could also wield the sword of temporal power we shall see in the course of time. In the early days they were a world within the world—vehement in convictions, stimulated by persecutions, and extremely well organised.

Their bishops arbitrated and ruled in ecclesiastical matters,[274] and also in civil suits between individuals who were unwilling to go to law before unbelievers, and doubtless they sat in judgment on their own followers before the advent of the regular Ecclesiastical Courts of subsequent ages.[275] From the Apostolic times they had resented resort to external tribunals,[276] and, in a series of Councils,[277] the Church had forbidden appeal to the civil powers against the decisions of Christian Courts; by the eighty-seventh Canon of the Fourth Council of Carthage (A.D. 398) no Catholic was to bring any cause, whether just or unjust, before an heretical judge.

The time came when the State accepted Christianity, and when that religion influenced the laws.[278] Under Constantine the civil officers were obliged to carry out the decrees of the Christian bishops, who exercised a wide jurisdiction. In 376 their Courts were given the same status as belonged to those of the imperial magistrates.[279] From the beginning, and under the Theodosian and Justinian Codes, the bishops possessed great disciplinary powers; and after the death of Charlemagne, in the midst of a period of violence and disruption, the Ecclesiastical Courts were firmly established and gained in power as the centuries went by.[280] They had their own rules and codes to determine cases,[281] and came to adjudicate upon many things which do not concern us, such as tithes, breaches of covenant, births, marriages, and wills.[282]

It used to be a custom in ancient times for the bishop to go journeying through his diocese. As he entered each parish he would be met by the inhabitants, from amongst whom he would select seven men of mature age and strait character,[287] who were then sworn on holy relics to relate all they knew, or possibly imagined, about their neighbours and their shortcomings. The bishop or his archdeacon[288] would then investigate and summon suspected persons before them for examination and sentence.[289]

It would appear that these inquisitions with the _Testes Synodales_ could be extremely punitive when undertaken by a vigilant and censorious Christian moralist. We find that an energetic Bishop of Lincoln so harried his diocese,[290] and with amazing and minutely personal examinations[291] unearthed so many scandals among all ranks of the people,[292] that he was checked by Henry III.[293]

Although the nations and the laws of Europe ceased to be pagan, and became Christianised, the Church, with its haughty claims and well-learned rulers, sought for autonomy. Had not the Apostle Paul said that they should judge angels,[294] and that the saints some day should judge, the world?[295] After such a text it was easy to claim that the Emperor Constantine had declared at the great Council of Nicaea[296] (in A.D. 325) that priests could be judged by God, but not by men. The clergy wanted to be tried by their peers, and looked askance at the other Courts; the times were given over to violence, the punishments were always sanguinary, and the lay lords and judges were exceedingly rapacious.[297] If there were no more open pagans in high places, there came along various heretics certain to be abhorred at least equally.

So the Church started on a long contention, in which there were many struggles, with local victories and defeats in different countries. In the earlier period the State was the stronger; a law of Gratian[298] (fourth century) reserved to the Secular Court all but the slight offences of the clergy. It was laid down at the Council of Agde in 506,[299] and again at the Council of Epaone in 517,[300] that while the clergy should not appeal to the civil power as plaintiffs,[301] they were to attend if summoned to the Secular Courts. At a Council of Macon in 581[302] it is implied that criminal cases were to be conceded to them. At the same time the clergy were forbidden to accuse one another before civil magistrates.[303]

The fear and jealousy of the Secular Courts persisted; by a Canon of the Third Council of Orleans (A.D. 538),[304] the bishop’s permission was to be given before a cleric could attend as plaintiff or defendant. By the fourth Canon of the Fifth Council of Paris (A.D. 615),[305] no judge was to try any ecclesiastic without first giving notice to his ordinary; this order is repeated in a Capitulary of Charlemagne of A.D. 769. Pope Gregory the Great (540–604)[306] had contended for the principle that a clerical defendant was entitled to be tried by his own Court, and this was established by Welsh Canons of the seventh century.[307]

A Capitulary of Charlemagne gave the bishops criminal jurisdiction over the clergy,[308] though the emperor reserved to himself the right of final decision in all cases.[309] By the year 853 his grandson, the superstitious Charles the Bald, was appealing to the bishops at Soissons against the person of a humble clerk who was accused of forging the royal signature.[310] In A.D. 866[311] Pope Nicholas I., in his advice to the Bulgarians, declared that laymen had no right to scrutinise or condemn any priests, who were to be left to the control of their prelates. The Council of Ravenna in 877[312] ordered that none who were under the bishops’ guardianship should be seized by the seculars.

The two systems drifted farther and farther apart;[313] clerks were forbidden under pains and penalties to attend secular summonses. The Emperor Frederic II.[314] decreed in 1220 that no one might drag a clerk before a secular tribunal; any lay judge who convicted one was to forfeit his place, besides incurring spiritual penalties.[315] The Emperor Charles IV. made similar laws in 1359 (_Constit. Caroli IV._ 5), and punished the imprisonment of a clerk with outlawry and loss of possessions.[316] This was confirmed by Pope Martin V. in 1418. The right to clerical immunity[317] was reasserted at the twenty-fifth session (20) of the General Council of Trent in 1563.[318]

The Church, as we have already seen, had been allowed and appointed to regulate the faith and morals of all men. It also claimed, and, in the long-run, secured, the right to demand all clerics accused of crimes,[319] except in cases of high treason, highway marauding,[320] and deliberate house burning,[321] offences against the laws of the forest (that is hunting the king’s deer, etc.),[322] and misdemeanours (_i.e._ slight offences).[323] In time all clerks claimed privilege of clergy, and these consisted not only of those in priests’ orders[324] (of minor orders there were four degrees below subdeacons[325]), but of all those who were tonsured and had their hair cut in the clerical fashion.[326]

All anywise connected with Church work, such as the readers, acolytes, and door-keepers, could claim clergy.[327] So that the state of clerkship was frequently claimed,[328] both justly and fraudulently, by extremely humble people, and the existence of the tonsure, and also its genuineness, were very important in criminal cases, for it was sometimes assumed as a claim to immunity,[329] and occasionally the accused would have their heads shaved by the prosecutors in order to obliterate it.[330]

By the statute _Pro Clero_ of 1350,[331] “all manner of clerks, as well secular as religious, which shall be from henceforth convicted before the secular justices aforesaid for any treasons or felonies touching other persons than the King himself or his royal majesty, shall from henceforth freely have and enjoy the privilege of Holy Church, and shall be, without any impeachment or delay, delivered to the ordinaries demanding them.” This came to mean immunity for all who could read.[332]

A man who claimed clergy was examined as to his scholarship, being required to read a passage,[333] usually from the 51st Psalm, which was called his “neck verse.”[334] Then said the lay Court to the bishop’s representative, “Legit ut clericus?” and the examiner replied, “Legit,” or “Non legit”;[335] and the person would either be remitted to the ordinary or sentenced by the judge, although it was forbidden to teach an accused person his letters[336] while he awaited trial (and he might have to lie five or six years in the bishop’s prison until he could be presented at the assizes—Pollock and Maitland, _Hist. Eng. Law_, p. 442); yet foreigners might read from books in their own language,[337] and the blind could claim clerkship if they could speak in the Latin tongue.

Clearly, to be tried by the Ecclesiastical Courts was looked upon as being a privilege and an advantage by the person accused.[338] He had every chance of acquitting himself[339] by means of the Canonical Purgation (see Compurgation, _ante_);[340] and even if he happened to be condemned by bishop or abbot,[341] in case he failed to obtain the necessary compurgators, or were delivered over _absque purgatione_ (_i.e._ not allowed to make his purgation),[342] or even if, from religious fears, he refused to swear innocence,[343] the ecclesiastical punishments were generally merciful, except for such deadly sins as heresy or witchcraft.

The clergy were forbidden by the Canons to impose sentences of death or mutilation;[344] the injunction was repeated by Archbishop Ecgberht.[345] “We threaten anathema,” wrote Archbishop Richard in the year 1175,[346] “to that priest who takes the office of sheriff or reeve.” Again in 1215 were the clergy forbidden the judgment of blood.[347] They were not, said a Council of Toledo,[348] to sit as judges, even at the command of a ruler, in cases of treason, unless he first promised to remit the red penalties. At the Council of Auxerre[349] the clergy were prohibited from witnessing the usual torturing, of the prisoners, or from lingering round the trepalium when it was in progress. In fact, except for acts or thoughts which it considered to be high crimes against the soul, the Church was milder than the mediæval State.