A Review of the Systems of Ethics Founded on the Theory of Evolution

by Cora May Williams

But simple burning or hanging was, for the most part, considered much too good for the man who had committed high treason; he was given the mere mockery of a trial, and, if convicted, was hanged, was taken down while yet alive, disembowelled, and his entrails burnt, was beheaded, and quartered. Law modifying this penalty first comes into prominence in the reign of William III.[232] When Richard I. sailed with his army for the Holy Land, it was ordained that whoever killed a man on board ship was to be tied to the corpse and thrown into the sea, whosoever killed a man on shore was to be burnt alive with the corpse, while simply drawing blood with a knife was to be punished with the loss of a hand, and a thief was to be shaved, treated to a head-bath of boiling pitch and feathers, and put ashore at the first place the vessel touched at.[233]

The payment of blood-money was a common custom among the Teutons, and so little distinction was made between greater and lesser crime that, while a murderer could commonly buy off the relatives of his victim, the petty thief often suffered death or mutilation for his offence. Pike says of these punishments in the early history of Britain: "It was for the free man of low estate, for the slave, and for women, that the greatest atrocities were reserved. Men branded on the forehead, without hands, without feet, without tongues, lived as an example of the danger which attended the commission of petty crimes, and as a warning to all who had the misfortune of holding no higher position than that of a churl. The horrors of the Danish invasions had no tendency to mitigate these severities; and those who were chastised with whips before were chastised with scorpions afterwards. New ingenuity was brought to bear upon the art of mutilation, which was practised in every form. The eyes were plucked out; the nose, the ears, and the upper lip were cut off; the scalp was torn away; and sometimes even, there is reason to believe, the whole body was flayed alive."[234] The law of the tenth century, according to which a female slave who had committed theft was burnt alive by eighty women-executioners, has already been mentioned; parallel to this law was the law that a male slave who was a thief was to be stoned to death by eighty slaves, any one of whom, who missed the mark three times, was to be whipped three times. "If a thief was a free woman, she was to be thrown down a precipice or drowned."[235] The law did not favor women.

The dividing line between mutilation and torture is a difficult one to draw. One of the earlier forms of "trial" was by ordeal. The accused, with his hand bound in cloth, was compelled to snatch a stone from elbow or wrist-depth in a caldron of boiling water, or to lift a weight of heated metal. If, at the end of three days, when the cloth which bound the arm was removed, no scald or burn was visible, the accused was pronounced innocent. These ordeals took place in the church with much sprinkling of holy water and other ceremony. The clergy themselves seem to have had less trying substitutes for these ordeals, often being compelled only to take oath on the sacrament, or to partake of consecrated bread or cheese which was supposed to produce evil results in case of guilt. As Pike suggests, it is quite possible that, as priests had the preparing of this bread or cheese, it may sometimes have come up to expectations in this respect; as it is also possible that the cloths bound on the arm of the layman who was to undergo the ordeal of fire or water may have been differently arranged in different cases.[236] As late as the reign of King John, trial was made by ordeal, and mention is also made of it in the reign of Henry II. It was not formally abolished until the year 1219.[237] For remaining mute before accusers in court, the dire penalty of imprisonment with starvation was inflicted, in the reign of Edward I., and to this punishment was added, about the time of Henry IV., torture by the press.[238] In 1570, a man found guilty of forging warrants for the arrest of two persons was sentenced to the pillory for two days, on the first of which one ear, on the second the other, was to be nailed to the pillory in such a manner that he must "by his own proper motion" tear it away.[239] The rack is supposed to have been introduced into England in the reign of Henry VI., and in the reign of Henry VIII. was added "Skevington's Daughter," an instrument by which offenders were compressed rather than extended until "the miserable human being lost all form but that of a globe." Blood was forced from fingers, toes, nostrils, and mouth, and ribs and breast-bone were commonly broken in. The thumb-screw was also in use, and there was a "Dungeon among Rats," and a chamber in the Tower called "Little Ease," in which it was impossible either to stand upright or to lie at full length.[240] The press was not abolished until the reign of George III.[241] It is recorded of the case of Burnworth, tried for murder in 1726, that he bore pressure of nearly four hundred weight, for an hour and three-quarters, before begging for mercy and pleading Not Guilty. He was, however, found guilty and hanged.[242] In 1630, Alexander Leighton was punished for "framing, publishing, and dispensing a scandalous book against kings, peers, and prelates," in the following manner: he was whipped, put in the pillory, had one of his ears cut off and one side of his nose slit, was branded on one cheek with a red-hot iron, was afterwards returned to the Fleet to be kept in close custody, and seven days later was whipped again at the pillory, had the other ear cut off, his other nostril slit, and his other cheek branded.[243] As late as 1734, John Durant, who "either was, or pretended to be, deaf and unable to read," had his thumbs tied and the knot drawn hard because he did not answer the accusation of the court; he was also threatened with the press.[244] Excepting in cases where the press was used, torture was not, according to Pike, practised in England after the first part of the seventeenth century; but the case just cited is a contradiction of so broad an assertion.

The introductions of customs of penance did much towards rendering the differences in the punishment and general treatment of the poor and rich, the humble and noble, more conspicuous. As for the clergy, they had special benefits given them, and were accustomed, in the early days of Britain, to murder, rob, and indulge their passions very nearly as they chose, without interference from the state.[245] But the Benefit of Clergy, which rendered any one subject to it, "practically exempt from the ordinary punishments for most of the greater crimes," was applicable, in later centuries, not only to clergymen proper, but also to all clerks, the term including every one who had been married and could read.[246] The position of the slave after the Teutonic invasion has been noticed. The position of the churl was nearly as bad. "The infliction of a penalty which he could not pay, and which none would pay for him, rendered him utterly bankrupt in freedom.... If he left the place assigned to him it was held that he had stolen his own body. He could be summarily hanged when caught, and his life was worth nothing to his lord, or even to his kindred, unless they redeemed him. This was the fate which was continually impending over the free man of low estate if he had the misfortune to make enemies among those who had the power to save or condemn him."[247] In the reign of Edward I., "a statute was passed which made it a grave offence to devise or tell any false news of prelates, dukes, earls, barons, or nobles of the realm. Others, too, were enumerated as being within the meaning of the act—the Chancellor, the Justices of either Bench, and all the great officers of state." Under Richard II., the statute was reënacted and made more stringent.[248]

For most trivial offences of all sorts, extreme punishment was meted out. Mutilation was often inflicted merely for the killing of game belonging to the King's forests, and though the Forest Charter of Henry III. provided that no one should, in future, lose life or limb for the sake of the King's deer, the penalty does not seem to have gone out of use at this period, for other offences. In the reign of Edward III., a tailor was sentenced, for brawling in court, to imprisonment in the Tower of London for life and the loss of his right hand; "and the rolls of Gaol Delivery of this period show conclusively that the ordinary punishments were hanging, the pillory, and the tumbrel or dung-cart."[249] Late in the reign of Henry VIII., an act was passed condemning any person who struck another so that blood was drawn, within the limits of the King's house, to the loss of his right hand. The pillory was in use up to the reign of Queen Victoria; "it could be applied to perjurers and suborners of perjury until the year 1837. It was even applied to women for no greater crime than fortune-telling, late in the eighteenth century."[250] "Of the other punishments associated with the old spirit of violence, and inflicted in public, the chief was whipping. It was commonly awarded to men guilty of petty thefts.... Instances in which women were whipped were by no means uncommon at the very end of the eighteenth century." Until 1808, pocket-picking, until 1811, stealing from bleaching-grounds, were punished with death. In 1813, 1816, and 1818, a bill was introduced to abolish capital punishment for a theft of five shillings from shops; but it was defeated in the House of Lords. In 1820, the amount necessary to the death-sentence was raised to £15. Until 1832, horse, cattle, and sheep stealing, theft from a dwelling-house, and forgery, were capital offences. In 1833, house-breaking; in 1834, returning from transportation before expiration of the sentence; and, in 1835, sacrilege and letter-stealing ceased to be punished with death. But it was not until 1861 that hanging was limited by law to cases of murder and treason.[251]

The worst element of the punishment by pillory or in any manner in public did not lie so much in the punishment itself, as in the violence of the mob, which appears to have been regarded as a legitimate part of the ceremony, and against which the criminal seldom received any protection. Sometimes, the man or woman sentenced to the pillory for a petty offence died of stoning at the hands of the onlookers; and Pike writes of the burning of a woman in 1721, for coining: "Her last wish was that she might say a prayer in peace. But the mob which had come out to take its ease and its pleasure had no mind to sacrifice its rights for the comfort of a criminal. A woman at the stake was a good butt for filthy missiles and ribald jests; the yelling rabble would not permit the poor wretch to collect her thoughts, or to hear her own words, and instead of sympathy they gave her stones. When the fire was kindled, even the consuming flames must have seemed less cruel than the men and women standing around."[252]

We all know the condition in which Howard found the prisons of his day; and if we possess strong powers of imagination, we may perchance be able partly to conceive what must have been their state in days when the people knew but very little of what passed within prison-walls, and the keepers wielded an almost absolute power over the prisoners. If the abuses which were common even two centuries ago were to occur in only a few instances to-day, the whole English nation would flame with indignation. In the fourteenth century, jail-breaking was frequent in cases where the prisoner could afford to pay for his escape; judges were often bribed; a "clerk" who was delivered over to the bishop before or after sentence, according to the Benefit of Clergy, could still be acquitted by the bishop in case the requisite number of compurgators were found to swear to belief in his innocence; and, moreover, clerks who had been convicted could not afterwards be tried for any offence committed before their conviction. On the other hand, if a woman attempted to obtain sentence against the murderer of a relative, she had not only to fear the revenge of the man's allies, who seem to have had things very much their own way; but in case courage deserted her at the last, and she failed to appear against the accused, she was "waived" or outlawed; again it may be remarked that the laws of England did not favor women.[253] Writs were forged, juries were packed, judges, justices, and sheriffs bribed. In the reign of James I., the young countess of Essex, who, having fallen in love with Lord Rochester during the absence of her husband, had obtained a divorce to marry him, became angry with a friend of her lover who counselled him against the marriage, caused him to be imprisoned in the Tower, had the Lieutenant and under-keeper of the Tower replaced by friends of hers, and through the aid of these administered poison to him. The countess and her husband were arrested on charge of causing the death, and the former pleaded, the latter was proved, guilty. Yet the two were pardoned, though some of their accomplices were executed.[254]

It is impossible that such customs should exist, in legal relations, in connection with great justice and sympathy in other relations. Some allowance may be made for idiosyncrasy, for individual and national peculiarities; it is possible that a bloody-minded and cruel ruler may find pleasure in petting pigeons, but his pleasure will be likely to be rather of an egoistic order, and his apparent kindness easily turned to cruelty if anger comes upon him. So, too, the cruel potentate may prove a kind husband and friend, as long as his own interests coincide, and do not conflict, with those of his friends or his family. But the man who is consistently treacherous and unfeeling in any one relation will not, as a rule, show consideration and tenderness in other relations, except in so far as these other relations subserve his own ends of gain or vanity; the point where they part company with such ends is the point where he will resort to another mode of action. The same is true of nations. Accordingly, we find brigandage and open robbery common even down to the end of the last century, and not only on the part of the poorer classes, or rather not so much on their part as on that of princes, nobles, and even the clergy; we find pirating and wreckage common on the sea; we find intrigue upon intrigue at court, nobles and members of the royal family continually plotting each other's murder, but nevertheless escaping punishment and received with adulation; we find the much-praised heroes of the Crusades devasting the lands through which they passed, violating wives and daughters of their hosts, and deserting to the enemy for bribes; we find wholesale massacres of unoffending Jews; we find perjury a profession, station an excuse for nearly every crime, religion a cloak for extortion and vice, and oppression of the poor and lowly universal. And yet we weep over modern deterioration!