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.