The number of capital offences was truly enormous. Onward from 1688 they steadily increased,[[159]] owing, as has been well remarked, to the “unhappy facility afforded to legislation by Parliamentary government.”[[160]] Members who could not become ministers, and who yet wanted to do something, often had interest enough to hang somebody, or at least to get a law passed creating a new capital felony.[[161]]
Thus through the ambitions of private members and the general callousness of the ruling class, the number of capital offences kept ever growing, until, in theory, there were more than two hundred of them.[[162]] The law, however, had overreached; rough and often most brutal as the people of that day were, they would not enforce the penalties provided,[[163]] so that the hangman’s ministrations were invoked for only twenty-five classes of offences in London,[[164]] and for not more than thirty throughout England.[[165]] In fact, it was found that conscientious people refused to prosecute for the lesser crimes, dreading to have a share in taking life. But actually the gallows load was heavy; an instance appeared in a Times[[166]] paragraph—18th January 1801—which tells how a certain Andrew Branning, a luckless urchin aged only thirteen, had broken into a house and carried off a spoon. Others were with him, but they ran away, and only he was captured and brought to trial. His story ended in two words, which were short and customary: Guilty—Death. Thus transportation and the extreme penalty kept clearing the prisons, but those within them were the while exploited, being entirely the prey and property of warders, keepers, and assistant gaolers, all of whom made the most of their positions—which might be given out like pensions or be purchased[[167]]—to wring out fees[[168]] and make their places pay;[[169]] and having what amounted to unlimited power, and being, by the nature of their office, used and inured to witnessing suffering, the gaolers,[[170]] from the beginning and right into the eighteenth century, shrank from no means, however mediæval, by which they could extract their fees and charges.[[171]] Thumbscrews and iron skull-caps were sometimes used,[[172]] and were produced in court as evidence.[[173]]
Prisoners might be loaded with heavy irons unless they would pay to be allowed lighter ones.[[174]] They were liable to be flogged with ropes or whips or anything that came handy,[[175]] the common instrument of flagellation, however, being the formidable membrum tauri.[[176]] They might be kept in damp dungeons and darkness; the living were sometimes locked up with the dead. They could be set apart and purposely exposed to utter starvation,[[177]] gaol fever, and small-pox, or actually done to death by their keepers’ violence.[[178]]
The prisoners were robbed for room, squeezed for food,[[179]] and dealt with for drink of all kinds, spirits, and tobacco, in which the officials did a roaring trade.[[180]] Lastly, the new arrivals at a prison were fleeced and pillaged by their fellow gaol-birds for “chummage” or “garnish” money,[[181]] and failing this, they were frequently stripped of their very clothing, a process termed “letting the black dog walk.”[[182]]
And in all these vile places there was generally no production of anything. The prisons and Bridewells were supposed originally to set rogues to work,[[183]] but the authorities took no trouble to organise it, and throughout the detention-places useful employment (if we except occasional work done for the gaoler, or permitted in particular instances) was impossible. It was found in 1818,[[184]] that, out of the 518 prisons in the United Kingdom, in 445 there was no employment, and that in the remaining 73 it was of the slightest possible description. Such were the bad old prisons of the past. Their faults were many, glaring, and obvious, but they had yet a human side, too, and a better one. Though the idiot might be laughed at and the new-comer despoiled, though the keepers might be brutal and the atmosphere poisonous, still in the midst of evil there would be individual acts of kindness and self-sacrifice. If the captives were in chains and rags,[[185]] they were not cut off from the outside world or striped and spotted in a livery of shame.[[186]] If gaols were hotbeds of infection and cesspools of corruption,[[187]] at least they were not the ghastly whited sepulchres which were built in the nineteenth century.
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.