CONTENTS
CHAPTER I
| PAGE | |
| Penal Methods of the Middle Ages | [1] |
CHAPTER II
| The Witch Trials | [107] |
CHAPTER III
| Treatment of the Insane | [142] |
FOOTNOTES
| For all Chapters | [179] |
CHAPTER I
PENAL METHODS OF THE MIDDLE AGES
Prisons as places of detention are very ancient institutions. As soon as men had learned the way to build, in stone, as in Egypt, or with bricks, as in Mesopotamia, when kings had many-towered fortresses, and the great barons castles on the crags, there would be cells and dungeons in the citadels.[[1]] But prisons as places for the reception of “ordinary” (as distinct from state or political) criminals for definite terms only evolved in England many centuries afterwards[[2]]; whilst imprisonment as a punishment in itself,[[3]] to be endured under rules made expressly punitive and distressful, may be described as essentially modern, and reached its worst phase in the nineteenth century.[[4]]
The Teutonic Tribes of the bays and forests were fierce and free. They exemplified, in fact, the theory of Nietzsche, that liberty cannot be granted but must be taken.[[5]] They had not cowered before Oriental superstitions,[[6]] and as they lived in widely scattered hordes a central government could not impose its yoke upon the savage warriors. With the wild clansmen of the fierce Norse nations, where every man was always ready armed[[7]] and boys received their weapons at fifteen,[[8]] the great desideratum was the maintenance of peace.
The instinct of retaliation throbs in all men, and vengeance swift and bloody would be sought for, which, where the kindred ties were close and strong, might spread a feud through villages and clans, such that the very children might be born devoted to the duty of a family revenge. The Teutonic nations, like the free peoples they were, always assumed that for a crime to have been committed, an individual must have suffered injury.[[9]] And they conceived the aggrieved plaintiff as no cowed weakling (or he would not have counted), but as a fighting freeman with spear and shield, who would repay a wrong with interest, and whom, if slain, his kinsmen would avenge.
Thus the placation[[10]] of the injured party was the objective of the oldest laws. Allowance was made for human feelings[[11]] and impulses. Some ancient codes[[12]] permitted him like for like; an eye for an eye, and a tooth for a tooth, in the sense of so much, and no more.[[13]] But the Teutonic laws offered him compensation,[[14]] and, when it was possible, compelled him to accept it.[[15]] Thus crimes were met by restitution, not by punishment.[[16]]
Every sort of injury which one freeman could do to another was first of all atonable by bōt (a money compensation paid to the injured man or his relations).[[17]] What this fine was depended firstly upon the nature and extent of the damage done, and secondly upon the rank and importance of the person injured.[[18]] For every man had his class and value; and every form of aggression against a freeman, from a wound which killed him outright to a blow which deprived him of a single tooth,[[19]] as well as the theft of anything he possessed, had its appointed fine according to his wer.[[20]]
The tariffs varied with the different tribes,[[21]] but the main principle—of compensation—extends through all. In Mercia the wer-gild of a king was fixed at 7200 shillings or 120 Mercian pounds of silver,[[22]] to which great sum was added the cynebot of a similar amount which was payable to his people.[[23]] The wer-gild of a thane (i.e. county magnate) came to 1200 shillings, that of a ceorl (labourer) was 200 shillings.[[24]]
These murder-fines, however, were much heavier than they look;[[25]] those of the kings,[[26]] numerous as they were, would in most cases have been hopelessly unpayable by private people, and those of the thanes by humble families. Even the wer-gild of the ceorl, or labourer, which was 200 scillings, or about four pounds, was not inconsiderable when we remember that in Æthelstan’s time one scilling would buy a sheep, and six scillings (or thirty pence)[[27]] an ox—the cost would be the price of a small herd.[[28]]
So that frequently the man-fines[[29]] were never paid, and then we perceive that the wise compensation system of the codes arose more out of the fear of the vendetta than from humane principles;[[30]] if they were not paid, vengeance would be let loose.
If the offender were not slain or abused,[[31]] if he did not escape and live as an outlaw and a “wolf’s head”[[32]] (which was frequently done,[[33]] for there were some ten men outlawed[[34]] to every one hanged[[35]]), he might be sold[[36]] as a wite theow[[37]] into penal slavery.[[38]] For there were slaves as a class in Christendom and in England up to the twelfth century,[[39]] and they being helpless, like our “submerged” masses, were of little account at all in the community.
Derived mainly from the conquered taken in wars and raids,[[40]] their ranks were recruited by men sold for their offences, and likewise, it is said, from those who sold themselves in times of starvation;[[41]] many were sent as slaves beyond the seas,[[42]] and the fact that we find this custom repeatedly prohibited[[43]] testifies also to its prevalence.[[44]]
From the poor slaves there need be no fear of vengeance or retaliation; they were a voteless minority amidst Saxon freemen. If a slave were slain only eight shillings were payable to his kinsfolk,[[45]] while a man-bōt of thirty shillings was claimed by his master.[[46]] And that, it would seem, was all on the part of the State.[[47]] The Church, however, to its credit, imposed a penance, a two years’ fast.[[48]] Other injuries to the theow (slave) were treated with proportional mildness,[[49]] but of Church laws and discipline I shall have to speak presently.[[50]]
For the damage done by his slave the master was liable,[[51]] as for a trespass by his cattle.[[52]] For the more serious offences the theow would be handed over to the kinsfolk of the injured party, unless perchance his master should redeem him by payment.[[53]] If upon accusation he failed at the ordeal, he was to be forthwith branded the first time;[[54]] but the second conviction would be capital, “seconda vice non compenset aliquid nisi caput.”[[55]]
Apart from legal or revengeful penalties for wrongs done to any freeman,[[56]] the theow was absolutely at the mercy of his master.[[57]] If he were not allowed to “redeem his hide” by such small compensation or atonement of which he was capable, he might have one leg fastened by a ring to a stake, round which he would be lashed with a three-thonged whip.[[58]] It was composed of cords knotted at the ends.[[59]] If a ceorl were goaded into homicide, vengeance might then be taken upon six of his kinsfolk[[60]] (upon the principle that the thane had six times his value,[[61]] see wer-gilds, ante, and Maitland, Domesday Book, p. 53). If a theow killed his lord[[62]] he was to perish in torments;[[63]] for revenge was sweet,[[64]] and the strong took it without stint.[[65]]
Clearly, then, from the nature of early Saxon society, elaborate penal machinery had no place. The freemen atoned for their transgressions with fines when possible, and by slavery, mutilation, outlawry, or death when they could not pay. Cruelly as the slaves might be flogged or slaughtered, there were no prisons in the land even for them.[[66]] The villages were mere groups of wooden homesteads with barns and cattle sheds surrounded by rough stockades and destitute of roads or communications. Even the palace of the king was a long wooden hall with numerous outhouses, for the English built no stone houses and burnt down those of their Roman predecessors.[[67]]
The Teutons, according to Tacitus, abhorred walled towns as the defences of slavery and the graves of freedom. The Frisians forbade the construction of any walls more than 12 feet high.[[68]] In the course of time the crown, or central government, grew in power; the king, and even the great lords, spiritual and temporal, were able to enforce obedience and order, at any rate upon those in their neighbourhood.[[69]] The royal authority could defy the vendetta, and from very early times had claimed a share in the compensation,[[70]] so that, along with the wer-gild, payable to the injured party, the wite, or additional fine, had to be paid to the sovereign (or overlord) for the disturbance of his peace.[[71]]
Sometimes he would take vengeance for the State or for an aggrieved person.[[72]] Thus in the reign of Æthelstan a man might forfeit his hand for coining, and have it nailed over the door of the mint;[[73]] and in the reign of Cnut a woman might lose her nose and ears if she committed adultery. In the early period these mutilations appear to have often been intended to be mortal, for in the laws of Alfred and Guthrum we read that “If a malefactor, having forfeited himself, has had a limb cut off, and, being left to himself, survive the third night; afterwards he that is willing to take care of his sore and soul may help him with the Bishop’s leave.”[[74]]
But the maimed criminals were also allowed at large to be a living warning to others. That the Saxons could be cruel enough when bōt was not made, and to habitual criminals and slaves, we have seen already; how barbarous the amputations were may be gleaned from the words of our Danish monarch: “... At the second time let there be no other bōt if he be foul” (at the ordeal) “than that his hands be cut off or his feet, or both according as the deed may be, and if then he have wrought yet greater wrong, then let his eyes be put out, or his nose and his ears and the upper lip be cut off; or let him be scalped ... so that punishment be inflicted and also the soul preserved.”[[75]]
William the Norman enjoined that offenders should not be slain outright, but hacked about.[[76]] “Interdicimus,” he commands, “eciam ne quis occidatur vel suspendatur pro aliqua culpa sed enerventur oculi, et abscindantur pedes vel testiculi, vel manus ita quod truncus remaneat vivus in signum prodicionis et nequicie sue.”[[77]]
About the tenth century, after the ending of the Danish troubles, and in the eleventh under the Norman rule, the king was strong enough to extend his power and protection.[[78]] In the twelfth the old system of bōt and wer, designed to compensate the injured and keep the peace among a fierce and warlike race of freemen,[[79]] began to give place to one under which the king exacted punishment and tribute,[[80]] which he administered and collected through itinerant judges, sheriffs, and other officers.[[81]]
The heavy fines imposed on places and people[[82]] became an important source of revenue to the crown[[83]] and to the barons and the lords of manors[[84]] when they held rights of private jurisdiction[[85]] (Sake and Soke, Courts Leet,[[86]] etc.), which were frequently delegated.[[87]]
The State was growing strong enough to take vengeance; the common man was no longer feared as had been the well-armed Saxon citizen of old, and to the “common” criminal was extended the ruthless severity once reserved for the slaves.[[88]] Then likewise Glanville and the lawyers,[[89]] under the influence of Rome and Constantinople, drew a sharp and arbitrary distinction between the criminal and the civil pleas, and the idea of compensation began to wane before the revenge instinct now backed by power. If there was money obtainable, the king’s judges would seize it;[[90]] the idea of damage done to the individual was merged and lost in the greater trespass[[91]] alleged to have been committed by the offender against the peace, against the code and king.
Up to the middle of the twelfth century[[92]] some counties were without public gaols or prisoners’ cages,[[93]] and Henry II. commanded their construction at the Assize of Clarendon, 1166. By the seventh article[[94]] gaols were to be made in the walled towns or erected within royal castles[[95]] with the king’s timber or other wood that might be available.[[96]] They were evidently light improvised structures[[97]]—sheds knocked up beneath massive walls of city or castle. The king’s strong places or the larger monasteries would be prisonous enough with little alteration. These early prisons of the Angevin kings were collecting depots or remand prisons for the safe custody of persons accused. Bracton, who died in 1268, expressly wrote that prison was to confine and not to punish.[[98]]
Bishop Britton[[99]] (thirteenth century) says that only those accused of felony were to be kept in irons, and none were to be ill-treated except according to sentence. In the Mirror of Justice we read that “every common prison[[100]] is a gaol, and only the king has the keeping of it[[101]]; every other man’s prison is private, etc.; and because it is forbidden that any one be tormented before judgment, the law wills that no one be placed among vermin and putrefaction, or in any horrible or dangerous place, or in the water, or in the dark, or any other torment; but it is lawful for gaolers to put fetters upon those whom they suspect of trying to escape, but the fetters must not weigh more than 12 oz....”[[102]]
The captives having been collected together within the gaols would have to wait till the next assize. It might be a long time—months (as even now) or years[[103]]—for the king’s judges were dreaded—and of those who could not get mainpernors (bail),[[104]] many would die of want or disease before the justices were ready to try them.
Meanwhile the prisoners and their families were to be kept at their own expense; according to Bishop Britton[[105]] the gaoler was required to take nothing from the poor—who would in general possess nothing to be taken—and not more than fourpence for the keep of any prisoner.[[106]] None were to be detained from inability to pay the fees. Such were the rules approved by Edward I. In practice, it appears probable that, for the next five hundred years or so, the prisoners would be well fed if they had means, and might be starved to death if they had not.[[107]]
Those who survived until the opening of the court would be brought up, according to Bracton,[[108]] with their hands free, though sometimes in leg-irons. We find the description amplified by Britton;[[109]] they were to be “barefooted, uncoifed and bareheaded, in their coat only, without irons of any kind,[[110]] so that they might not be deprived of reason by pain, nor be constrained to answer by force.”[[111]] But thus far no punishments had been meted out; these followed upon conviction, and were of a physical and sanguinary character.
According to Bracton an offender might be broken on the wheel for treason, a crime so great that it was scarcely to be permitted that the relations should live.[[112]] For the “common” criminal there was hanging,[[113]] and the ghastly mutilations enjoined by the Norman kings were continued; indeed they were made more savage for many offences after 1176.[[114]] Up to the reign of Henry III. the penalty for poaching in the king’s forests was death or the loss of eyesight.[[115]] Rape up to the reign of Edward I. might also involve loss of eyes and emasculation.[[116]]
Stealing from a dwelling appears to have met with the same barbarous punishment. A glimpse of the gentle ways of twelfth-century “justice” is revealed in an account of a supposed miracle. A certain Ailward, being accused of housebreaking (committed apparently under considerable provocation to recover a debt), was lodged for some time in Bedford Prison.[[117]] After having failed in the water ordeal and being convicted, he was taken out to the usual place of punishment, where his eyes were blinded, he was mutilated, and the parts were buried in the ground. He is said to have been restored through St. Thomas of Canterbury.
By the time of Edward I. we begin to arrive at sentences of imprisonment, and read of such penalties as one year and then a fine, or two years in default of fine, in the first Statutes of Westminster. For such offences as carrying off a nun, allowing a prisoner to evade prison, or stealing tame beasts out of parks, a sentence of three years might be awarded besides the customary fine. As we have seen, the profits of “justice” were highly regarded; the fines were precious perquisites of the Crown (and sometimes of subordinate administrators and officials as well). The prisons were used as “squeezers” to extort them. “Imprisonment,” say Pollock and Maitland,[[118]] “was, as a general rule, but preparatory to a fine. After a year or two the wrongdoer might make fine; if he had no money he was detained for a while longer. In the thirteenth century the king’s justices wield a wide ‘common law’ power of ordering that an offender be kept in custody. They have an equally wide power of discharging him upon his making a fine with the king.”
In Henry III.’s reign “The wrongdoer but rarely goes to prison, even for a moment.[[119]] On the plea roll the custodiatur which sends him to gaol is followed at once by ‘Finem fecit per unam markam’ (or whatever the sum might be), and then come the names of those who are pledges for the payment. The justices do not wish to keep him in prison; they wish to make him pay money.” The authors just quoted say that the fines were generally light, and give several instances[[120]]—it doubtless depended much upon the judges and the reign. But wherever there are enclosing walls, there are certain to be abuses behind them.[[121]] Judicial and administrative scandals kept on occurring.[[122]]
In the fourteenth century many persons are said to have perished of hunger and thirst,[[123]] and many died in prison about the time of the Black Death (1349).[[124]] Into the fifteenth century the complaints continue; we read the following in the Liber Albus:[[125]] “Whereas great outcry has been made heretofore as to many wrongs and misprisons done by the gaolers of Newgate and Ludgate and their officers and servants, ...” and new regulations were made (and no doubt broken, as the others had been) respecting fees the prisoners should pay.
The sixteenth century showed no advance in the matter of humanity.[[126]] Torture, which, legally or illegally, has always been a ready trick of statesmen, developed after 1468,[[127]] and under the Tudor sovereigns the rack was ever creaking to extort confessions. The “common” criminals were treated with the utmost severity; in 1530 an Act was passed by which all poisoners were to be boiled alive.[[128]] Burning was the penalty appointed for heresy, high and petty treason[[129]] (i.e. murder of a husband by a wife, murder of a master or mistress by a servant,[[130]] and several offences against the coin), and, unlike the punishment of boiling, continued legal until 1790.[[131]] The right hand might be taken off before hanging for aggravated murder, or a man might be hung in chains and left to perish.[[132]] There was the drawing and quartering in some executions, and ordinary hangings were exceedingly numerous.[[133]] Men lost their hands for exporting sheep and for libel,[[134]] and there was branding, etc., for perjury, and sometimes for persistent vagrancy.[[135]]
A picture of the prisons has been left us in a work of 1545. “I see,” observes the monk whose complaint[[136]] is given, “also a pytyful abuse for presoners. O Lord God, their lodging is to bad for hoggys, and as for their meat it is euil enough for doggys, and yet, the Lord knoweth, thei haue not enough thereof. Consyder, all ye that be kyngs and lordys of presons, that inasmoch as ye shut up any man from his meate, ye be bound to giue him sufficyant fode for a man and not for a dogge.” He further declares that the charges were greater than any at the “dearest inn in Ingland,” and says that men lay six and seven years in prison before the oncoming of their case.
About the year 1552 the City authorities selected what had been a palace at Bridewell[[137]] (given by Edward VI.) for (among other purposes) locking up, employing, and (as heretofore, according to Holinshed) whipping beggars, prostitutes, and night-walkers of all sorts.[[138]] Later on similar detention places were also called Bridewells, after the first one at Blackfriars just alluded to. In 1597 they planned Houses of Correction,[[139]] and in 1609 it was ordered that they should be builded in every county.[[140]] Though they became, in practice, one with the common gaols, they lasted at least in name till 1865.[[141]] But to resume our survey of ordinary prisons. The seventeenth century affords the usual evidence of what walls can hide. The gaolers, as of old, appear to have been all powerful;[[142]] sometimes friendly, often the reverse, always extortionate. John Bunyan, during his twelve years’ incarceration, was allowed to work for his family—for a large part of the time in tolerable surroundings; but while in the Gate House prison he was charged huge fees.[[143]] The prisoners hung collecting bags out of their windows on Sunday mornings.
George Fox,[[144]] the Quaker, agreed with the keeper and his wife for meat and drink, chamber, and other accommodation at a certain rate. But he refers to one of their party being put “down in the Doomesdale[[145]] amongst the felons,” and this, it appears, was a “noysome, filthy, stinking hole, where was a puddle of ... and filth over their shoes and the ... of the felons, and straw almost broken to chaffe with their long lying thereon and full of vermin, wherein is neither chimney nor easing house.” Confirmatory evidence as to how felons fared in 1667 may be deduced out of a Statute of Charles II.[[146]] “Whereas,” it says, “there is not yet any sufficient provision made for the relief and setting to work of poor and needy persons committed to the common gaol for felony and other misdemeanours, who many times perish before their trial, and the poor there living idly and unemployed become debauched and come forth instructed in the practice of thievery and lewdness,” etc.
The excellent plan was proposed that the profits of the prisoners’ labour should be placed to their relief. But to find useful labour within prison walls has always been a most difficult problem, and the world outside was always far too busy to see to it. The prisons of the eighteenth century were very much like those that had been before, but perhaps we know more about them through the great work of John Howard, The State of the Prisons. It is a matter of history how that grim, conscientious Puritan went where the ruling classes neither cared nor dared to venture.[[147]] For, besides the dreadful stench which stuck to his notes and garments, deep in the windowless (window tax), airless rooms and dungeons through which he went, down in the stale, cramped yards[[148]]—when there were any—without space or sun, and in which even the supply of water was mostly beyond the bounds and so inaccessible,[[149]] rising amidst the putrefaction of those places, there lurked the dreaded typhus or gaol fever.
It had always been about since prisons were used, and sometimes proved the Nemesis of neglect.[[150]] In 1522, at the assize in the castle at Cambridge,[[151]] many of the knights and gentlemen attending caught the infection from the “sauor of the prisoners or the filthe of the house.” Writing of the year 1577, we read in Baker’s Chronicle:[[152]] “About this time when the judges sate at the Assize in Oxford, and one Rowland Jenks, a bookseller, was questioned for speaking opprobrious words against the queen, suddenly they were surprised with a pestilent savour, whether rising from the noisome smell of the prisoners or from the damp of the ground is uncertain; but all that were present, almost every one, within forty hours died.” Much the same happened at Exeter in 1586[[153]] and at Taunton in 1730, and some hundreds perished at both these places.
Thomas Allen, in his History of London,[[154]] relates that in 1750 “The Lord Mayor, some of the aldermen, two of the judges, the under sheriff, many lawyers, and a number of lookers-on, died of the gaol distemper.” The prison was afterwards cleansed! Howard asserts that in 1773–4 more people died from the gaol fever than were executed in the kingdom;[[155]] we lost 2000 sailors (criminals were often given the choice between punishment and the services) with the fleet in the war with America.[[156]] He quotes Lord Bacon as saying that the most pernicious infection next to the plague is the smell of the jail.[[157]] Such were the mephitic dens into which were cast men, women, and children of all sorts; and there they would rot away or survive, as the case might be, until the expiration of their (generally short) sentences of imprisonment, if they could pay the fees charged on their coming out; or until they ultimately came up for trial, after which they would either be acquitted and discharged (again when they paid the fees), or they would be convicted and transported or executed.[[158]]
The number of capital offences was truly enormous. Onward from 1688 they steadily increased,[[159]] owing, as has been well remarked, to the “unhappy facility afforded to legislation by Parliamentary government.”[[160]] Members who could not become ministers, and who yet wanted to do something, often had interest enough to hang somebody, or at least to get a law passed creating a new capital felony.[[161]]
Thus through the ambitions of private members and the general callousness of the ruling class, the number of capital offences kept ever growing, until, in theory, there were more than two hundred of them.[[162]] The law, however, had overreached; rough and often most brutal as the people of that day were, they would not enforce the penalties provided,[[163]] so that the hangman’s ministrations were invoked for only twenty-five classes of offences in London,[[164]] and for not more than thirty throughout England.[[165]] In fact, it was found that conscientious people refused to prosecute for the lesser crimes, dreading to have a share in taking life. But actually the gallows load was heavy; an instance appeared in a Times[[166]] paragraph—18th January 1801—which tells how a certain Andrew Branning, a luckless urchin aged only thirteen, had broken into a house and carried off a spoon. Others were with him, but they ran away, and only he was captured and brought to trial. His story ended in two words, which were short and customary: Guilty—Death. Thus transportation and the extreme penalty kept clearing the prisons, but those within them were the while exploited, being entirely the prey and property of warders, keepers, and assistant gaolers, all of whom made the most of their positions—which might be given out like pensions or be purchased[[167]]—to wring out fees[[168]] and make their places pay;[[169]] and having what amounted to unlimited power, and being, by the nature of their office, used and inured to witnessing suffering, the gaolers,[[170]] from the beginning and right into the eighteenth century, shrank from no means, however mediæval, by which they could extract their fees and charges.[[171]] Thumbscrews and iron skull-caps were sometimes used,[[172]] and were produced in court as evidence.[[173]]
Prisoners might be loaded with heavy irons unless they would pay to be allowed lighter ones.[[174]] They were liable to be flogged with ropes or whips or anything that came handy,[[175]] the common instrument of flagellation, however, being the formidable membrum tauri.[[176]] They might be kept in damp dungeons and darkness; the living were sometimes locked up with the dead. They could be set apart and purposely exposed to utter starvation,[[177]] gaol fever, and small-pox, or actually done to death by their keepers’ violence.[[178]]
The prisoners were robbed for room, squeezed for food,[[179]] and dealt with for drink of all kinds, spirits, and tobacco, in which the officials did a roaring trade.[[180]] Lastly, the new arrivals at a prison were fleeced and pillaged by their fellow gaol-birds for “chummage” or “garnish” money,[[181]] and failing this, they were frequently stripped of their very clothing, a process termed “letting the black dog walk.”[[182]]
And in all these vile places there was generally no production of anything. The prisons and Bridewells were supposed originally to set rogues to work,[[183]] but the authorities took no trouble to organise it, and throughout the detention-places useful employment (if we except occasional work done for the gaoler, or permitted in particular instances) was impossible. It was found in 1818,[[184]] that, out of the 518 prisons in the United Kingdom, in 445 there was no employment, and that in the remaining 73 it was of the slightest possible description. Such were the bad old prisons of the past. Their faults were many, glaring, and obvious, but they had yet a human side, too, and a better one. Though the idiot might be laughed at and the new-comer despoiled, though the keepers might be brutal and the atmosphere poisonous, still in the midst of evil there would be individual acts of kindness and self-sacrifice. If the captives were in chains and rags,[[185]] they were not cut off from the outside world or striped and spotted in a livery of shame.[[186]] If gaols were hotbeds of infection and cesspools of corruption,[[187]] at least they were not the ghastly whited sepulchres which were built in the nineteenth century.