In the beginning of the thirteenth century Pope Innocent III. modified the oath,[268]and afterwards witnesses swore only to character, to their belief in the accused’s credibility. Compurgation appealed especially to the clergy,[269]and was even called thePurgatio Canonica.[270]Cut off by their calling from all lay connections, they could rely the more upon their own brethren. It was by solemnly swearing with twelve priests as compurgators that Pope Leo III. elected to clear himself from certain accusations, in the presence of Charlemagne (inA.D.800);[271]and in 803 that emperor ordered priests to defend themselves by taking an oath with three, five, or seven compurgators. The practice began to decline towards the close of the twelfth century,[272]but still lingered on into the sixteenth century in England, and in isolated cases to later times. The Wager of Law was not formally repealed till 1833.[273]
The Christians had always been an exclusive body of people, at first from fear, and afterwards from fanaticism. They excommunicated all offending members, thus not only cutting them off from fellowship, but also depriving them of those rites which in their creed were necessary for salvation. This custom of excluding from communion was from the first a formidable spiritual weapon among believers; what it became when the Christians could also wield the sword of temporal power we shall see in the course of time. In the early days they were a world within the world—vehement in convictions, stimulated by persecutions, and extremely well organised.
Their bishops arbitrated and ruled in ecclesiastical matters,[274]and also in civil suits between individuals who were unwilling to go to law before unbelievers, and doubtless they sat in judgment on their own followers before the advent of the regular Ecclesiastical Courts of subsequent ages.[275]From the Apostolic times they had resented resort to external tribunals,[276]and, in a series of Councils,[277]the Church had forbidden appeal to the civil powers against the decisions of Christian Courts; by the eighty-seventh Canon of the Fourth Council of Carthage (A.D.398) no Catholic was to bring any cause, whether just or unjust, before an heretical judge.
The time came when the State accepted Christianity, and when that religion influenced the laws.[278]Under Constantine the civil officers were obliged to carry out the decrees of the Christian bishops, who exercised a wide jurisdiction. In 376 their Courts were given the same status as belonged to those of the imperial magistrates.[279]From the beginning, and under the Theodosian and Justinian Codes, the bishops possessed great disciplinary powers; and after the death of Charlemagne, in the midst of a period of violence and disruption, the Ecclesiastical Courts were firmly established and gained in power as the centuries went by.[280]They had their own rules and codes to determine cases,[281]and came to adjudicate upon many things which do not concern us, such as tithes, breaches of covenant, births, marriages, and wills.[282]
It used to be a custom in ancient times for the bishop to go journeying through his diocese. As he entered each parish he would be met by the inhabitants, from amongst whom he would select seven men of mature age and strait character,[287]who were then sworn on holy relics to relate all they knew, or possibly imagined, about their neighbours and their shortcomings. The bishop or his archdeacon[288]would then investigate and summon suspected persons before them for examination and sentence.[289]
It would appear that these inquisitions with theTestes Synodalescould be extremely punitive when undertaken by a vigilant and censorious Christian moralist. We find that an energetic Bishop of Lincoln so harried his diocese,[290]and with amazing and minutely personal examinations[291]unearthed so many scandals among all ranks of the people,[292]that he was checked by Henry III.[293]
Although the nations and the laws of Europe ceased to be pagan, and became Christianised, the Church, with its haughty claims and well-learned rulers, sought for autonomy. Had not the Apostle Paul said that they should judge angels,[294]and that the saints some day should judge, the world?[295]After such a text it was easy to claim that the Emperor Constantine had declared at the great Council of Nicaea[296](inA.D.325) that priests could be judged by God, but not by men. The clergy wanted to be tried by their peers, and looked askance at the other Courts; the times were given over to violence, the punishments were always sanguinary, and the lay lords and judges were exceedingly rapacious.[297]If there were no more open pagans in high places, there came along various heretics certain to be abhorred at least equally.
So the Church started on a long contention, in which there were many struggles, with local victories and defeats in different countries. In the earlier period the State was the stronger; a law of Gratian[298](fourth century) reserved to the Secular Court all but the slight offences of the clergy. It was laid down at the Council of Agde in 506,[299]and again at the Council of Epaone in 517,[300]that while the clergy should not appeal to the civil power as plaintiffs,[301]they were to attend if summoned to the Secular Courts. At a Council of Macon in 581[302]it is implied that criminal cases were to be conceded to them. At the same time the clergy were forbidden to accuse one another before civil magistrates.[303]
The fear and jealousy of the Secular Courts persisted; by a Canon of the Third Council of Orleans (A.D.538),[304]the bishop’s permission was to be given before a cleric could attend as plaintiff or defendant. By the fourth Canon of the Fifth Council of Paris (A.D.615),[305]no judge was to try any ecclesiastic without first giving notice to his ordinary; this order is repeated in a Capitulary of Charlemagne ofA.D.769. Pope Gregory the Great (540–604)[306]had contended for the principle that a clerical defendant was entitled to be tried by his own Court, and this was established by Welsh Canons of the seventh century.[307]
A Capitulary of Charlemagne gave the bishops criminal jurisdiction over the clergy,[308]though the emperor reserved to himself the right of final decision in all cases.[309]By the year 853 his grandson, the superstitious Charles the Bald, was appealing to the bishops at Soissons against the person of a humble clerk who was accused of forging the royal signature.[310]InA.D.866[311]Pope Nicholas I., in his advice to the Bulgarians, declared that laymen had no right to scrutinise or condemn any priests, who were to be left to the control of their prelates. The Council of Ravenna in 877[312]ordered that none who were under the bishops’ guardianship should be seized by the seculars.
The two systems drifted farther and farther apart;[313]clerks were forbidden under pains and penalties to attend secular summonses. The Emperor Frederic II.[314]decreed in 1220 that no one might drag a clerk before a secular tribunal; any lay judge who convicted one was to forfeit his place, besides incurring spiritual penalties.[315]The Emperor Charles IV. made similar laws in 1359 (Constit. Caroli IV.5), and punished the imprisonment of a clerk with outlawry and loss of possessions.[316]This was confirmed by Pope Martin V. in 1418. The right to clerical immunity[317]was reasserted at the twenty-fifth session (20) of the General Council of Trent in 1563.[318]
The Church, as we have already seen, had been allowed and appointed to regulate the faith and morals of all men. It also claimed, and, in the long-run, secured, the right to demand all clerics accused of crimes,[319]except in cases of high treason, highway marauding,[320]and deliberate house burning,[321]offences against the laws of the forest (that is hunting the king’s deer, etc.),[322]and misdemeanours (i.e.slight offences).[323]In time all clerks claimed privilege of clergy, and these consisted not only of those in priests’ orders[324](of minor orders there were four degrees below subdeacons[325]), but of all those who were tonsured and had their hair cut in the clerical fashion.[326]
All anywise connected with Church work, such as the readers, acolytes, and door-keepers, could claim clergy.[327]So that the state of clerkship was frequently claimed,[328]both justly and fraudulently, by extremely humble people, and the existence of the tonsure, and also its genuineness, were very important in criminal cases, for it was sometimes assumed as a claim to immunity,[329]and occasionally the accused would have their heads shaved by the prosecutors in order to obliterate it.[330]
By the statutePro Cleroof 1350,[331]“all manner of clerks, as well secular as religious, which shall be from henceforth convicted before the secular justices aforesaid for any treasons or felonies touching other persons than the King himself or his royal majesty, shall from henceforth freely have and enjoy the privilege of Holy Church, and shall be, without any impeachment or delay, delivered to the ordinaries demanding them.” This came to mean immunity for all who could read.[332]
A man who claimed clergy was examined as to his scholarship, being required to read a passage,[333]usually from the 51st Psalm, which was called his “neck verse.”[334]Then said the lay Court to the bishop’s representative, “Legit ut clericus?” and the examiner replied, “Legit,” or “Non legit”;[335]and the person would either be remitted to the ordinary or sentenced by the judge, although it was forbidden to teach an accused person his letters[336]while he awaited trial (and he might have to lie five or six years in the bishop’s prison until he could be presented at the assizes—Pollock and Maitland,Hist. Eng. Law, p. 442); yet foreigners might read from books in their own language,[337]and the blind could claim clerkship if they could speak in the Latin tongue.
Clearly, to be tried by the Ecclesiastical Courts was looked upon as being a privilege and an advantage by the person accused.[338]He had every chance of acquitting himself[339]by means of the Canonical Purgation (see Compurgation,ante);[340]and even if he happened to be condemned by bishop or abbot,[341]in case he failed to obtain the necessary compurgators, or were delivered overabsque purgatione(i.e.not allowed to make his purgation),[342]or even if, from religious fears, he refused to swear innocence,[343]the ecclesiastical punishments were generally merciful, except for such deadly sins as heresy or witchcraft.
The clergy were forbidden by the Canons to impose sentences of death or mutilation;[344]the injunction was repeated by Archbishop Ecgberht.[345]“We threaten anathema,” wrote Archbishop Richard in the year 1175,[346]“to that priest who takes the office of sheriff or reeve.” Again in 1215 were the clergy forbidden the judgment of blood.[347]They were not, said a Council of Toledo,[348]to sit as judges, even at the command of a ruler, in cases of treason, unless he first promised to remit the red penalties. At the Council of Auxerre[349]the clergy were prohibited from witnessing the usual torturing, of the prisoners, or from lingering round the trepalium when it was in progress. In fact, except for acts or thoughts which it considered to be high crimes against the soul, the Church was milder than the mediæval State.
The Church being debarred from the employment of the swift and sanguinary penalties of those times, had to resort to other methods of disapproval, and it evolved the penitential discipline. At first it wielded only spiritual weapons—none the less terrible in those days because they were ghostly—and by refusing access to Church or Communion, and thereby (as all concerned fully believed) closing on kings the everlasting doors, it sometimes brought the mightiest to their knees to implore pardon from the priests of God.[350]On confessing a crime, or upon being condemned, all manner of tasks and toils were laid upon the penitent. Sometimes they were capricious and poetic; thus if a man had slain his near kindred,[351]the weapon with which the deed was committed could then be forged into a penal chain, and, bound therewith, arrayed in the sclavinia,[352]or, it might be, naked, he would have to trudge away, staff in hand, to his destination, which might be some local shrine, or that of St. Thomas of Canterbury; but which might be far off, across and beyond the seas, to Compostela, Rome, or Palestine.[353]The ordinary penitent wore no chains, but he was usually required to go unarmed, to eat no flesh, to take no strong drink, and to abstain from warm baths, and sometimes he had to fulfil weird and painful conditions particularly imposed by his penitentiary;[354]as, for instance, when Robert, called the Devil, was ordered by a certain hermit[355]to eat only bones and scraps which had been thrown to dogs, and to be dumb and act like one insane. Our own King Edgar[356]was condemned not to wear his crown for seven years. Examples could be multiplied indefinitely. A much-employed form of correction consisted in imposing penitential fasts,[357]during which the offender was to subsist upon bread and water,[358]and was subject to many disabilities and restrictions.[359]These sentences might be for any period ranging from a single day to twenty years, and even longer, and all the while the penitent was supposed to drag out his existence in shame and disgrace, making prayers for deliverance.[360]
The Church allowed class distinctions in several ways;[361]offences might be punished according to the rank of the aggrieved party, so that the penance for the murder of a bishop was for twelve or fourteen years, or longer, upon bread and water, while the slaying of a deacon could be atoned for by seven or ten years’, and of a layman by four, five, or seven years’ discipline.
On the other hand, people, and especially the clergy, were liable to be sentenced more severely in proportion to their rank.[362]Thus for homicide, where a layman would get four or five years’ penance from the ordinary,[363]a clerk would receive six years, a priest ten, and a bishop as much as twelve years (seven on bread and water).[364]These long-enduring penances sound severe, and doubtless were for devout believers. But the Roman Church, always a marvel of organisation, allowed its bishops very great latitude, both in imposing and removing penances. “I require not the continuance of time,” said Chrysostom, “but the correction of the soul; demonstrate your contrition, demonstrate your reformation, and all is done.” By the authority of the Councils[365]they could increase or mitigate sentences,[366]so that the infirm and the over-sensitive might have their tasks modified.[367]
But they dealt gently with the men of might;[368]the wind was tempered to the woolly lamb.[369]In spite of Cuthbert’s Canons at Cloves-Hoo in the eighth century,[370]the rich were generally enabled to perform their pilgrimages vicariously (whereby there had arisen a class of professional pilgrims; Thrupp, p. 239, etc.), and to atone for sins by almsgiving and payment.[371]“Thou hast money, buy off thy sin,” Ambrose had written in the fourth century.[372]“The Lord is not for sale, but thou thyself art for sale. Restore thee by thy works. Buy thyself back by thy money.”
This exhortation was followed and given the lowest possible interpretation in the Canons made (by Dunstan, probably) in the reign of King Edgar in the year 963.[373]When a great man had been condemned to fast, say seven years, he was to lay aside his weapons, and take his staff in his hand and walk barefoot, clad in wool or haircloth, and he was not to go to bed or banquet for three days.
He was to take to his assistance twelve men, and they were to fast three days on bread, raw herbs, and water: thus thirty-six fasts were kept. He was to get together seven times 120 men and set them to fast three days; thus he secured 7 × 120 × 3 + 36 fasts, or 2556, which meant as many fasts as there were days in seven years, counting a leap year! And thus his penance was done, or rather evaded.[374]
But the Church did not usually allow its penalties to be disregarded; against heretics there were, even in England, severe statutes,[375]and they would be seized by the civil forces and burned alive. Any one who had offended against the Canons, and who refused to do penance, could be excommunicated, and then he became liable to arrest.[376]In this country if the offender ignored it for forty days,[377]the King’s Court, on the request of the bishop,[378]issued a Writ of Significavit,[379]or some similar injunction, ordering the sheriff to imprison him until he had satisfied the claims of the Church.[380]
The hierarchy, although, as we have seen, debarred from directly inflicting such penalties as death or amputation of members, resorted to many forms of corporal punishment. Floggings for penance or discipline were administered frequently;[381]the younger monks in the monasteries commonly received thirty-nine stripes.[382]
But the bishops had other and worse penalties in reserve, and, unlike the secular rulers, they employed imprisonment as a means of punishment in itself. The Catholic Church, with its ideals of cloistral life and ascetic seclusion, sought to produce remorse through mental affliction, and in its high-walled abbeys and gloomy courts had buildings ready to immure any one. The first cells were among theexedraeround churches and bishops’ houses and were called thedecanica,[383]while refractory monks were freely imprisoned in the great monasteries.[384]
Though the ecclesiastical punishments[385]were accounted generally merciful—as we shall see presently from English comments on them—they could be pitiless enough on occasions, especially against heretics. The secret and dreadful Inquisition had its own prisons,[386]in which it tortured its victims by every means that subtlety could suggest, and in which the mind-wrecking results of solitary confinement were probably first discovered, and at any rate utilised.
Already back in the thirteenth century the authorities had frowned on prison association.[387]In 1229 a Council of Toulouse ordered that the “converted” heretics (i.e.those who had recanted from the fear of execution, and who were even then sentenced to imprisonment for life;videLea, on Laws of Frederic II., Bull of Gregory IX., etc., in hisMiddle Ages, i. pp. 321, 484) should be kept from corrupting others. The new prisons built for the Church and the Inquisition[388]were ordered to have small dark dungeons for solitary confinement. In 1246 a Council of Beziers[389]ordered that the captives should be kept separate in secret cells, so that no one might corrupt another. It speaks of the “enormis rigor carceris.”
The prisoners of the Church[390]were subjected to various kinds of incarceration. There was theMurus Largus, under which they were allowed about the place;[391]theMurus Strictus,Durus, orArctus, by which they were supposed to be confined in separate cells upon bread and water;[392]and theMurus Strictissimus, where they were kept in dungeons and in heavy irons.[393]The Inquisition employed, besides, innumerable torments, and could learn little from the imaginings of Dante; but that dread organisation has a history of its own.
Apart from it, the bishops[394]possessed their prisons, and the great convents had penal cells,[395]and these they would use to inflict penance or punishment.[396]Thus at Canossa, in 1077, Pope Gregory VII.[397]consigned the rebellious German prelates to solitary cells with bread and water dietary.
Again we may read of another example occurring in the year 1283. A certain Brother John had, it appears, bitten his prior’s finger “like a dog,” it was said; and for this we find the bishop ordering the outraged prior[398]“to keep the said Brother John in prison under iron chains, in which he shall be content with bread, indifferent ale, pottage, and a pittance of meat or fish (which on the sixth day he shall do without) until he is penitent.” A worse fate befell Alexander de Langley in the same century.[399]This unfortunate creature was a man of great culture and was the keeper of the abbot’s seal. Either from approaching general paralysis, or from some other form of insanity, he passed into a state of extreme exaltation, perhaps to the extent of being, as they would take it, mutinous or blasphemous. A severe flogging having failed to restore his sense of proportion, he was consigned in fetters to a cell in which he ultimately died, and was buried, the corpse still chained.
There had also existed within the monasteries the dreadful punishment of solitary confinement known asIn Pace. “Those subjected to it,” says Dr. Lea,[400]“died in all the agonies of despair. In 1350 the Archbishop of Toulouse appealed to King John to interfere for its mitigation, and he issued an ordinance that the superior of the convent should, twice a month, visit and console the prisoners, who, moreover, should have the right, twice a month, to ask for the company of one of the monks. Even this slender innovation incurred the bitterest resistance of the Dominicans and Franciscans, who appealed to Pope Clement VI., but in vain.”
There could indeed be abuses and cruelties in ecclesiastical prisons, as there always are where high walls conceal. For instance, we may read[401]that inA.D.1283 certain monks were seized by the Abbot of Westminster, “and so greatly beaten that one of them has miserably expired.” There were cases where the Church took the extreme step of degrading from orders. In the very early period this often meant that degraded clerics would be immediately claimed by the secular authorities and set servile tasks[402]—after which they could not be reinstated. Very often they were shut up in the monasteries,[403]a course which the bishops preferred to remitting them to lay punishment.[404]Innocent III. (1198–1216), however, directed that clergy who had been degraded should then be handed over to the secular powers.[405]
But in actual practice clerks were not often totally degraded.[406]To be deprived of orders was looked upon as a terrible punishment;[407]it was the final casting from the fold and was inflicted with great difficulty.[408]Three bishops were required to degrade even a deacon; six were necessary to unfrock a priest; and it took twelve prelates to adjudicate upon a bishop.[409]
When any were degraded, excommunicated, and sent to the seculars, the sanguinary lay penalties took their course.[410]The chief offence for which the Church withdrew all protection was obstinate or repeated heresy. In the earlier period those found guilty were branded on the forehead[411]and cast out[412](as once from Oxford, to die of cold and starvation) excommunicate, or they might be imprisoned and have their property confiscated.[413]But with the rise and multiplication of militant sectaries, the Church urged the State to proceed to extremities.
Heretics were ruthlessly burned alive by popular custom[414](and were sometimes “lynched” like negro criminals in the United States;videLea,Middle Ages, i. pp. 219, 222, 308), and in time this became formally recognised.[415]Pedro of Aragon in 1197, the Emperor Frederic II. by theEdict of Cremonain 1238, Louis IX. of France by hisÉtablissementsin 1270, and Henry IV.[416]of England in 1400, made burning at the stake the legitimate punishment of persistent or relapsed heretics.[417]
But it was not the severities of the Church that kept arousing the jealousy and opposition of the secular power. It was the immunity it afforded to those under its protection[419]which moved the State to attack clerical privileges, and, in the course of ages, to remove them entirely. In Saxon times lay and episcopal authorities acted closely together, but William of Normandy, doubtless continuing the Continental movement already alluded to, separated the ecclesiastical from the secular courts.
King Henry II. had succeeded to the throne after a period of civil war and devastating brigandage, in which the Church had fortified its position and extended its jurisdiction,[420]and was bent upon reasserting the power of the central government. He found that the clergy and the clerks[421]were outside his control, and in the middle ages they were a numerous body,[422]as many people were received into orders who had little or nothing to do in their own profession, and who were debarred by rule from obtaining a livelihood otherwise.[423]So the king employed all his efforts to place the clerks under his justices.
A crucial case arose in 1163. A certain Philip de Broi or de Brois,[424]who was probably an Archdeacon of Bedford and a Canon of Lincoln, had previously escaped personal punishment on a charge of manslaughter, but was afterwards denounced as a murderer by Simon FitzPeter, who was one of the king’s justices. On this he protested vehemently and abused the judge. There had been several other cases about that time, including a bad one of murder and rape by a cleric from Worcester,[425]and another of homicide out of Salisbury,[426]in which the offender escaped with imprisonment, and King Henry took action with great fury.[427]He claimed to have been insulted in the person of his delegate, and ordered that de Broi should be brought to trial, not only for this, but for the original manslaughter; he wished, in fact, to send him to the gallows. But the archbishop refused to reopen the matter already tried and decided, but for having insulted the king’s officer the rebellious priest was severely dealt with,[428]as he was stripped and flogged before the angry judge, and lost his office and stipend on being banished for two years.[429]The king was dissatisfied, desiring nothing less than the death of the canon, and vigorously proceeded towards the subjugation of the clergy.
In 1164 he promulgated theConstitutions of Clarendon, by which he desired that criminous clerks should incur the lay penalties. The offender was first to be accused in the temporal court;[430]then tried, convicted, and degraded by the ecclesiastical tribunal; thence sent back for sentence to the secular court, to receive the customary draconic punishments. But Archbishop Becket and the English hierarchy declared that to degrade a clerk and then remit him to the secular judges was to punish him twice for the same offence.[431]“Affliction,” they said, quoting a Hebrew prophet,[432]“shall not rise up a second time.” All they would concede was that if a clerk after being degraded[433]committed the offence again he might be handed over as an ordinary layman.[434]
The death of Archbishop Thomas stayed all Henry’s plans as regards the Church. “The temporal courts maintained their claim to bring the criminous clerk before them; they abandoned their claim to punish the degraded clerk.”[435]In the thirteenth century it had become the custom that the clerk[436]should first be indicted and inquired upon before he could claim his clergy;[437]by the reign of Henry VI.—1422–1461—he must first be convicted[438]before being passed into the hands of his bishop.[439]
In 1261 Archbishop Boniface[440]ordered that the clerks in their bishops’ custody for capital crimes should suffer perpetual imprisonment. In 1275 Edward I. expressly ordered that the bishops were to allow no clerks to depart without purgation.[441]In 1276,[442]theBigami,i.e.the persons who had been twice married or those who had married widows[443](highly respectable acts at the present time), were excluded from claiming clergy.[444]In 1279 Archbishop Peckham decreed in hisConstitutions:[445]“Let not clerks that are in prison for their crimes, and afterwards delivered to the Church as convicts, be easily enlarged, or admitted to purgation upon too slight pretence, but with all solemnity of law and with such provident deliberation that it may not offend against the king’s majesty or any that have a regard to equity.”
In 1350 there came the statutePro Clero.[446]Many persons had, it appears, been seized by the seculars. By this Act the Church’s privileges were reaffirmed,[447]and the offending clerks were ordered to be handed over to the spiritual courts. But for this grant the king demanded that the clerical convicts should thenceforth be safely kept and duly punished, “so that no clerk shall take courage to offend for default of correction.” Thus urged by the Crown, and perhaps fearful of other enactments, Simon Islip, Archbishop of Canterbury, endeavoured to make things harder for the Church’s prisoners. “They are,” he complains, “with so much backwardness and favour committed to gaol, and are so deliciously fed there, that the prison intended for a punishment for their crimes is turned into a refreshment and delicious solace, and they are pampered in their vices by ease and such inducements and yet make their escape out of custody as injurious to them.... And some notoriously infamous criminals, that are in truth wholly without excuse, are yet so easily admitted to their purgations, that every clerk thus delivered (by the secular judge) hath sure hopes of returning to his former evil life by one means or other.... Therefore we have thought fit thus to ordain concerning the imprisoned clerks[448]... (they are) to be closely imprisoned with all proper care and expedition according to the quality of their persons and the heinousness of their crimes, that they may not to the scandal of the Church return to their former way of life from an imprisonment intended for a punishment.” Clerks guilty of bad offences are, on Wednesday, Friday, and Sabbath day, to have bread and water; on the other days, bread and small beer; “but on the Lord’s day, bread, beer, and pulse, for the honour and eminence of that day. And let nothing else be given them by way of alms or gratuity from their acquaintance and friends, or for any pretence or reason whatsoever; nor let any purgation be granted them.” These severe rules, which, coming from the archbishop,[449]were, of course, repeated by all the prelates, resembled the penal systems of discipline which reached their maximum of cruelty in the nineteenth century.
But there seems good reason to believe that the Church’s treatment of its prisoners remained, on the whole, mild and humane. The clergy were not hardened prison officials; their calling was spiritual rather than military. They were dealing with men belonging more or less to their own order, and were prone to class loyalty.[450]
In the light of subsequent criticism and legislation,[451]it seems that even after Islip’s ordinance the Church’s convicts were much better treated than were the laymen in the common gaols. Moreover, either (or both) from a sense of humanity,[452]or because the bishops disliked having to pay for the keep of their prisoners,[453]long sentences were avoided and life sentences were inflicted as rarely as possible; the prisoners would be pardoned[454]on jubilees and special occasions, and sometimes released on their friends paying ransom (apparently of such sums as £20 or £40;videLea,Studies in Church History, p. 202, and the statute 23 Hen. VIII. c. 1). The State all along appeared on the side of severity, and, from the thirteenth century, was in the habit of sending clerks to their bishopabsque purgatione, who, in theory at least, were to be life prisoners. Indeed, if the ordinary should attempt to release such persons, he could be restrained from doing so by a writ out of the Chancery.[455]
So early as 1238 a Bishop of Exeter[456]was in trouble for having sent a certain clerk to purgation. Later on an Abbot of St. Albans[457]was accused of allowing some prisoners to escape; and there are doubtless other instances. But evidently the prisoners of the bishops were continually being released, for we find a special statute[458]passed in the year 1402 forbidding that clerks found guilty of treason (of less degree than plotting against the king himself), or who were known to be common thieves, should be allowed any sort of purgation. In 1485 an Act[459]was passed by which the bishops might commit priests, clerks, and religious men to ward and prison for advowtry (i.e.adultery), fornication, incest, or any other fleshly incontinence, and they were not to be liable for actions for wrongful imprisonment.
In 1487 a severe blow was aimed at immunity. By this Act,[460]clerks (i.e.such as could read, but who were not actually within orders) were to enjoy their privilege only once; and to ensure that they should no longer be “continually admitted as oft as they did offend,” it was ordained that clerks not within orders, who should hereafter be convicted of murder, should be forthwith branded[461]by the gaoler in open court with the letter M upon the brawn of the left thumb, and, if found guilty of theft,[462]with the letter T, before being handed over to the ordinary’s officer.
An ordained priest could appeal to his Church again, but if he should claim his clergy a second (or other) time, he was to have his letters of ordination ready at hand, though he might be allowed one day’s grace in which to obtain them—or equivalent evidence from the nearest bishop—and if they were not forthcoming he forfeited all clerical privileges.[463]In 1496 lay persons who should murder their lord, master, or sovereign immediate were deprived of their clergy; and in the fourth year of the following reign more exceptions were made, and clergy was taken from all, not actually within orders, who committed a felony in a church, or upon the king’s highway, or who slew anybody in his own house.[464]
We have already seen with what exceeding difficulty a clerk, and more especially a priest, could be degraded and cast out of orders. To remedy this. Cardinal Wolsey, Archbishop of York, obtained a Bull[465](as regarded England) from Pope Clement VII. in 1528, by which a single bishop, assisted by two abbots or other high dignitaries, could perform the ceremony.[466]
The statute 23 Hen. VIII. c. 1 (1531) alludes to the monition of Edward I. (1275), to the effect that no Church prisoners should depart without strict purgation, on which Henry VIII. observes that, nevertheless, they were released very easily. It cites the statute of Henry IV. (1402), which ordered that notorious criminals should make no purgation, and goes on to say that the ordinaries kept releasing offenders speedily and hastily “for corruption and lucre,” or because the clergy will in no wise consent to take charge of prisoners. The law then proceeds to take away the benefit of clergy from the various petit treasons previously referred to, and also for arson, from all clerks—subdeacons and the grades above them still excepted. The clergy within orders were to have lifelong imprisonment for these crimes,
By the fourth Canon at the thirteenth session of the Council of Trent in 1551, it was decreed that a bishop or his vicar-general could condemn, and even degrade criminous clergy, with the assistance of as many mitred abbots, or, in default of them, as many high ecclesiastics as there would have been bishops under the old system. Lecourayer, i. p. 550; Luzio,Cath. Ency.iv. p. 678.] unless they could find guarantees for good conduct—the accused to the extent of £40, with two substantial sureties in £20 apiece. By this statute it was also intended to relieve the bishops of the burden of maintaining their prisoners, and they were empowered to degrade such offending clerks, and to hand them over “in sure and safe keeping into the King’s Bench,” with a certificate certifying their degradation—now so much easier—upon which the king’s judges were to pass such sentences (usually of death) as would have been passed upon the convicted if, at the time of their accusation, they had been laymen and not clerks of any kind.
Nor was this all, for in the same year (1531) an Act[467]was passed by which escapes from the bishop’s prison were made felony for the clerks; those within orders were to be sent back to their prison, to abide there without release. In 1533[468]clergy was taken away from all who refused to plead, or who challenged above twenty jurymen peremptorily. In 1536[469]clergymen within orders were to be placed on the same footing with other clerks, but this law only lasted about a decade. But now the immunity of the clergy began to be taken away by a long series of statutes exempting particular crimes from any indulgence.[470]
In 1576 convicted clerks ceased to be handed over to the bishops to make purgation.[471]For all “clergyable” felonies, Lords of Parliament[472](even when they could not read) and the clergy in orders were immediately released. The rest who could read were discharged for a first offence upon being branded, but the Court might also order their detention in prison for not more than a year; the captives who could not read were speedily hanged.[473]
As the privilege of clergy became less worth having it was extended: to thebigami, 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.
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 ofHenry 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 (theheals-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]
For the village scold[510]they kept the brank or bridle of iron, which contained a flat (and for the unfortunate witches[511]occasionally a spiked and painful) gag that went into the mouth and pressed down the tongue. They might also be placed in the local ducking chair[512]and immersed in water. A remarkable illustration[513]of the intensely individual and personal aspect of primitive penalties[514]is furnished where—as it sometimes happened—the prosecutor had himself to execute his convict assailant, “or dwelle in prison with the felon unto the time that he wyll do that office or else find a hangman.”[515]