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]]