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.