As the privilege of clergy became less worth having it was extended: to the bigami, or twice married, in 1547, and to women[[474]] (professed nuns had always lived under the Church’s rule) in 1692. Upon conviction they were to be treated in the same way as the men in similar cases, that is, branded upon the hand, and then discharged, either at once or after imprisonment not exceeding one year.

In 1699[[475]] it was ordered that the branding should be done upon the face, but this cruel marking was found to prevent the victims from obtaining employment and to render them desperate, and the law was repealed six years afterwards in the reign of Anne.[[476]] In 1705 the reading test was abandoned. The distinction had come to lie between offences, not offenders,[[477]] and all were admitted to “clergy” who had been convicted of any of these minor felonies which still remained clergyable.[[478]] The Act of 1705 also provided that such convicts should be liable to be sent to houses of correction or to public work-houses, for periods of not less than six months or exceeding two years, at the discretion of the magistrates.

In 1717[[479]] it was enacted that persons (other than peers or clerks in orders) guilty of clergyable offences might be transported for seven years[[480]] (the usual sentence was for fourteen), instead of being branded or whipped.[[481]] In 1779[[482]] persons liable to be burned in the hand might escape with a fine, or they might be whipped in public or private, not more than three times; women were to be flogged in the presence of females. By this Act the branding was abolished in practice; and about half a century later all that remained of the old privilege was done away with in the reign of George IV.[[483]]

It has been customary to condemn all these old rights for so many years accorded to clerkship, because they are supposed to have constituted infringements of the principle that all men should be equal before the law.[[484]] But when we consider the barbarities they prevented, and after we have examined and ascertained the aimlessness and inutility of mere punishments, we may be forced to think that they were not an unmixed evil, and that, perhaps, they rather made for good.

Summary and “Poetic” Punishments

Since the poor human body has always been sensitive, so at the promptings of the revenge instinct it has always been assailable and most readily beaten. Naturally enough the Duke of Gloster exclaims—in that most subtle second act of Henry VI.—“Have you not beadles in your town and things called whips?” Of course they had. The serf, the varlet, the vagabond, the lunatic, and the petty offender were all whipped with uncertain severity;[[485]] most likely until the victim was bloody and until the operator was tired and felt he had earned his fee. Doubtless the whips were of all sorts and sizes. They are frequently represented as having three thongs;[[486]] Titus Oates was flogged with a whip of six.[[487]] I have seen and handled a lash of transportation times, which had a thick leather thong bound with wire.[[488]] The cat-o’-nine-tails is alluded to in the eighteenth century.[[489]]

Both men and women[[490]] (the latter up to 1817[[491]]) were flagellated in public, being either tied up to a post, or fastened behind a cart and so thrashed along the road. Perhaps the most obvious thing to do, next to flogging an offender, was to exhibit him to the populace. The country was immeasurably more parochial than it is now in these times of travel, and to be rendered infamous in one’s village or neighbourhood was no trifling penalty; and so we find the stocks set up in the towns and hamlets,[[492]] and, for more serious misdemeanours, there was the lofty pillory or neck-catcher (the heals-fang).

This well-known instrument[[493]] was made of all shapes and sizes, and varied from a forked post or a slit pillar[[494]] to what must have looked like a penal dovecote made to hold several prisoners.[[495]] The convicted were sometimes drawn thither on hurdles, and might be accompanied by minstrels on the way.[[496]] The hair of the head and beard was shaved off, and sometimes the victims were secured by being nailed through the ears to the framework, and might also be branded.[[497]] With faces protruding through the strong beams, and with hands through two holes, secured and helpless, they were made to stand defenceless before the crowd as targets for any missiles that might be thrown. To those who were hated this was a serious ordeal, for they would be so pelted and knocked about by the mob as to be badly wounded, if not actually done to death. At length those who had stood their time were released, and those who had had their ears nailed would be cut free, and then they might slink away from the scene of shame, or be carried back to prison to endure additional punishment. The pillory was abolished for all offences except perjury and subornation in 1816,[[498]] and altogether in the year 1837.[[499]]

Before leaving the middle ages we must examine what I have classed as the poetic punishments. These were the spontaneous reprisals with which the community strove to repay the criminals in kind, and by which, if strict taliation were seldom attainable, our ancestors succeeded in contriving many chastisements that were, at any rate, associable equivalents. Of these a few examples may be given. For instance, a baker who sold loaves which were short of weight was shown with the bread tied round his neck.[[500]] A fishmonger who had been selling bad fish was paraded with a collar of stinking smelts slung over his shoulders.[[501]] A grocer who had been selling much-adulterated spices was placed in the pillory and had the powders burned beneath his nose (A.D. 1395).[[502]] A heretic who had advocated strict Judaism was sentenced to prison and to be fed entirely upon pork.[[503]] The Inquisition attached two pieces of red cloth in the shape of tongues to the breast, and two more upon the shoulders of a false witness, which were to be worn for life.[[504]] Indeed, badges and crosses were often imposed, and were in these times a dreadful mark of Cain.[[505]] In 1505 two men were sentenced by the archbishop to wear a faggot (or a badge representing one) upon the left shoulder, to show that they stood in danger of the flames.[[506]] It would seem they did, for they were burned alive in 1511.

Louis IX. ordered that those who had spoken indecently should have their tongues pierced and their upper lips cut away.[[507]] Pope Innocent IV. remonstrated with the king against this barbarity. The mutilation of the tongue was a punishment known and inflicted in England for blasphemy. In 1656 one James Nayler, “the mad Quaker,” had his tongue pierced with a hot iron for claiming to be the Messiah.[[508]] He was also whipped at the cart’s tail, and kept in prison for two years. A drunkard was sometimes walked about in a barrel, his head protruding from the top and his hands from two holes made in its sides.[[509]]