The English: A Social History, 1066–1945 (Text Only)

by Christopher Hibbert

  [Lord Moleyns] sent to the said mansion [Gresham] riotous people to the number of a thousand … arrayed in manner of war with cuirasses, body armour, leather jackets, headpieces, knives, bows, arrows, shields, guns, pans with fire and burning tinder in them, long crowbars for pulling down houses, ladders, pickaxes with which they mined the walls, and long trees with which they broke up gates and doors, and thus came into the said mansion. The wife of your petitioner was in the house, and twelve people with her, whom they drove out of the said mansion, and they mined through the walls of the room where the wife of your petitioner was and carried her out of the gates; and they cut through the posts supporting the house and let them fall. They broke up all the rooms and chests in the said mansion, and rifled them; and as in a robbery they carried off the goods, clothes and money that your petitioner and his servants had there, to the value of £200, and sold part of it, gave part of it away and divided the rest amongst themselves, to the great and outrageous hurt of your petitioner, saying openly that if they had found your petitioner there and one John Damme who is his adviser and various other servants of his, they would have been killed.4

  John Paston placed little faith in this petition which, in fact, merely resulted in the sheriff receiving a letter from the king ordering him to ensure that such a panel was formed as would acquit Moleyns. Paston resignedly remarked that such letters could easily be bought for 6s 8d, for justice was utterly corrupt. Paston’s father had advised a man to drop a suit as soon as he learned that the opponent was a friend of the Duke of Norfolk. And, as a correspondent of Paston himself observed, ‘Nowadays, ye know well that the law goeth as it is favoured.’ Bribes were a continuous necessity in any law suit unless a great man’s influence rendered them superfluous; and perjury was common.

  For the poor, trials were always uncertain. The laws of earlier times had invested those who had been wronged with the power to inflict punishments summarily and personally once proof of guilt had been obtained; and in the absence of incontrovertible proof the guilt of the accused was decided by the ordeal. Before the Norman Conquest this ancient ceremony of ‘God’s judgement’ had taken place inside a church; soon after the Conquest it was transferred to specially prepared pits outside it. A fire was lit and while water was being brought to the boil, a priest walked up and down between the two rows of spectators sprinkling them with holy water and giving it to them to sip, and the Gospels and cross for them to kiss. They were required to be ‘fasting and to have abstained from their wives during the night’. The accused had also been made to eat nothing for three days but bread, salt and herbs. When the water had boiled he was instructed to thrust his hand, or his arm up to the elbow, into it and pick out a stone. The skin was then bandaged and if, after three days when the cloth was removed, there was evidence of scalding this was taken to be proof of guilt.

  As an alternative to the ordeal by water the accused was sometimes required to walk over red-hot ploughshares without being seared, place his hand in a glove of red-hot iron, or to pick up a red-hot iron bar and hold it in his bare hand while he walked three paces. As with the ordeal with water, the hands or feet were then bandaged for three days; and if at the end of the third day a blister the size of half a walnut had appeared, this was accepted as proof of guilt. The priests themselves, if accused of crimes, were not made to undergo these ordeals; but instead had to stand before the altar and eat a piece of cheese on consecrated bread. God was called upon to send down the angel Gabriel to stop the. throat of a guilty priest and prevent him from swallowing.

  Guilt could also be decided by compurgation in which a number of compurgators were asked to swear to the innocence of the accused. Such oaths were taken as proof of innocence, just as the absence of compurgators, or an insufficient number of them at the time of the trial, was taken as proof of guilt. Forms of trial of this sort were common to many primitive societies and in them may be seen some inchoate germs of the jury system which was developed and greatly extended in scope and significance by William I and Henry II who encouraged the growth of a common law in England long before France and Germany had outgrown their local customs.5

  Trial by ordeal was formally abolished in England in 1219. But the equally ancient trials by combat survived into the fourteenth century. These were more often used to settle civil disputes, but a man accused of felony might establish his innocence by challenging his accuser to a duel. Knights fought with swords or lances; commoners with staves made lethal by iron heads; women and priests, the old and infirm could appoint champions to fight for them. The funeral brass of Wyville, Bishop of Salisbury, who died in 1375 bears the figure of the bishop’s champion standing in a fortified gateway, and presumably represents his victory over his opponent in a battle fought to determine the ownership of Sherborne Castle.6

  Trials by battle were rare, however, even in the thirteenth century; and by the time they were abandoned the various courts which had been established were administering the law with some regard to the rules of evidence. They were also administering it with increasing, if fluctuating, severity; for the conception of sin which had by now been absorbed into the criminal law had altered its character. Those guilty of serious crimes such as murder, robbery and rape could no longer make amends by compensation; they were required to do penance as sinners. They were also regarded, under the influence of the traditions of the rediscovered Roman law, as offenders against society at large whom the king, as leader of that society, was entitled to punish.

  In earlier centuries jurisdiction had been seen by the king – or by the prelates and lords of the manor to whom, under the feudal system, jurisdiction had been granted in return for specified services – largely as a source of revenue. It was now more often regarded as a method of repression, deterrence and retribution; and it was felt that only by the threat of savage punishments could the people’s growing predisposition to crime be checked. When crime was not checked, it was generally supposed that the punishments had not proved savage enough. Thus it was, for example, that although the laws of Ethelstan had provided that a coiner should have his hand cut off, by the time of Henry I, when this punishment had not deterred others from committing what the more general use of money had made a common offence, coiners could be castrated as well. A century later, coining was still widespread and, after an inquiry in Edward I’s time, 280 Jews were hanged in London for this offence alone.7

  The idea that criminal jurisdiction should be a source of revenue was not, of course, forgotten. Fines and forfeiture of goods were still commonly imposed in the king’s courts. So were sentences of outlawry by which the goods of the outlaw fell to the Crown. In 1279 all but three of the men who had been found guilty after trials for murder were outlawed. The ecclesiastical courts, while imposing severe punishments, such as the whipping and branding of heretics, also took care to ensure that their rights of jurisdiction were profitable ones.

  For the guilty who could not pay the fines imposed upon them, or whose goods were worthless, there was scant mercy. She had deserved death, a court decided in the case of a woman found guilty of perjury (a capital offence) in a murder trial, ‘but by way of dispensation let her eyes be torn out’. Even less mercy was shown to traitors whose public punishments were intended to add horror to the sentence of death.

  The award of the court, [the Earl of Carlisle was told in the reign of Edward II] is that for your treason you be drawn, and hanged, and beheaded; that your heart, and bowels and entrails, whence came your traitorous thoughts, be torn out and burnt to ashes and that the ashes be scattered to the winds; that your body be cut into four quarters, and that one of them be hanged upon the tower of Carlisle, another upon the tower of Newcastle, a third upon the Bridge of York and the fourth at Shrewsbury; and that your head be set upon London Bridge, for an example to others that they may never presume to be guilty of such treasons as yours against their liege Lord.8

  For the punishment of lesser crimes than treason there were the stocks, the pillory, and th
e ducking – or drowning-stool. The stocks, which held the miscreant by his ankles, were to be seen by the fifteenth century in every town and village in England where they were used to hold criminals until they could be taken to the place of their trial, and to expose vagabonds and local offenders to the ignominy of public vilification. The pillory held the culprit by the neck and wrists and was also used to shame offenders. A Londoner, accused of slander against some important city officials, was sentenced to a year’s imprisonment in Newgate and, during the year, was to be put in the pillory four times:

  The said John shall come out of Newgate without hood or girdle, barefoot and unshod, with a whetstone hung by a chain from his neck, and lying on his breast, it being marked with the words, – ‘A false liar’; and there shall be a pair of trumpets, trumpeting before him on his way to the pillory; and there the cause of his punishment shall be solemnly proclaimed. And the said John shall remain on the pillory for three hours of the day, and from thence shall be taken back to Newgate in the same manner.9

  The pillory was a more painful punishment than the stocks. Occasionally the culprit’s ears were nailed to the wooden board so that he could not hang his head when the spectators of his misery threw stones or rubbish at him; and sometimes his feet did not reach the platform and he was throttled. Death in the pillory was not uncommon; and women are known to have drowned when tied on the ducking-stool, a common punishment for ‘immoral’, ‘nagging’ and ‘scolding’ women, and later for witches, who were plunged by it into the waters of a pond.

  A sentence to imprisonment could also prove a sentence to death, particularly for those who could not pay the fees customarily demanded by gaolers for habitable accommodation and what was known as ‘easement of irons’. In Newgate alone there were numerous deaths every year; and in one year almost half the cases recorded in the Coroners’ Rolls for the City of London are inquests on men who died in that prison. When the, debtors’ prison at Ludgate was closed and the prisoners were transferred to Newgate, an order was made for reopening Ludgate on these grounds:

  Whereas through the abolition and doing away with the Prison of Ludgate, which was formerly ordained for the good and comfort of citizens and other reputable persons, and also, by reason of the fetid and corrupt atmosphere that is in the hateful gaol of Newgate, many persons who were lately in the said Prison of Ludgate … and who for divers great offences which they had there compassed, were committed to the said gaol [of Newgate], are now dead, who might have been living, it is said, if they had remained in Ludgate, abiding in peace there.10

  All over the country there were prisons as appalling, though not as large, as Newgate; and prisoners, in good health when they entered them, died in them in hundreds. In 1358 fifty approvers died in York Castle alone.11 All over the country, too, there were corrupt sheriffs and other officials who took innocent men, unlawfully indicted them, and imprisoned them in order to extract money from them.12 Prisoners were tortured in gaol to force them to give evidence against their supposed accomplices and were afterwards left in prison to die. From time to time efforts at reform were made: the commissions which Edward I was compelled to appoint to inquire into the misdeeds of his legal officers were not the first nor the last of many commissions appointed for this purpose. Yet justice remained difficult and sometimes impossible to obtain; bribery and corruption continued to infect the whole system; and it was still lamented that jurors could not be induced to bring in true verdicts against criminals.

  If not bribed or intimidated, juries often took the side of the accused as a matter of course, believing that he was frequently no more reprehensible than the judge who presided over his trial. And so long as not only inferior lawyers but a Chief Justice of England could be shown to be in receipt of bribes, as William Thorpe was in 1350; and so long as the Chancellor himself could make illegal profits from his high office, as William of Wykeham was believed to have done in 1371, the honesty of ordinary men who served on juries was not likely to be assured. Nor were their prejudices against the courts likely to be overcome when so many men enjoyed special privileges. Benefit of clergy, which meant originally that an ordained clerk charged with felony could be tried only in ecclesiastical courts, had changed its nature. It had come to be accepted as a plea against capital punishment in any court, and the benefit could be claimed by anyone who could show that he was an educated man. The ability to read a line or two of a prescribed text, which could, in any case, be learned by heart, was often taken as being sufficient evidence of education. As late as 1613 two men convicted of burglary at the house of the Earl of Sussex received different sentences: ‘The said Paul reads, to be branded; the said William does not read, to be hanged.’13

  For those who could not otherwise evade the law, there was the protection of sanctuary. As it had been considered sacrilege to remove the criminal fugitive from the temples of ancient Egypt and Rome, so it was recognized in Christian Europe that those who sought the protection of sacred ground were inviolate. Not only churches and monasteries offered protection but also any place which the Church, and the laws inspired by the Church, recognized as a sanctuary, as well as any area granted the privilege of sanctuary by royal charter. In London the numbers of these areas was constantly growing, and, although the right of sanctuary was legally suppressed in the reign of James I, several survived until the eighteenth century, including the Minories, the Mint, Whitefriars, Ram Alley, Mitre Court, Salisbury Court, Montague Close and Deadman’s Place. A malefactor who reached sanctuary, however, was not necessarily safe, even though to drag men out of sanctuary was a sacrilege punishable by whipping, fine, excommunication or even death. One Nicholas le Porter, who had helped snatch some refugees from the church of the Carmelites at Newcastle, was ordered to be whipped:

  We order [wrote Bishop Richard to the parson of St Nicholas at Durham] that on Monday, Tuesday, and Wednesday of the Whitsun week just coming, he shall receive the whip from your hands publicly, before the chief door of your church, in his shirt, bareheaded, and barefoot. He shall there proclaim in English the reason for his penance, and shall admit his fault; and when he has thus been whipped the said Nicholas will go to the cathedral church of Durham, bareheaded, barefoot and dressed as above, he will walk in front, you will follow him; and you will whip him in the same manner before the door of the cathedral these three days, and he will repeat there the confession of his sin.14

  Other offenders against the laws of sanctuary were excommunicated. Yet when William Longbeard took refuge in the London church of St Mary le Bow, in 1196, the Archbishop of Canterbury set fire to the building in order to smoke him out; in 1182 the Constable of the Tower dragged some escaped prisoners out of St Paul’s and beheaded them in the churchyard; and during the Peasants’ Revolt the abbey at Westminster, the chapel royal in the Tower, St John’s Clerkenwell and St Martin’s Vintry were all invaded by the pursuers of wanted men.15

  A fugitive who gained sanctuary had to confess his crime, give up his arms and, if he had entered a religious house, swear to obey its rules. Theoretically he was then safe for forty days; and during that time he could either come out to surrender or swear ‘to abjure the realm’. If he chose to leave the country he had to go ‘ungert, unshod, bare-headed in his bare-shirt, as if he were to be hanged on the gallows’, having received a cross in his hands. He was instructed to go to a specified port, usually Dover, given a fixed time in which to complete the journey, usually a day for every twenty-five miles, and forbidden to turn off the high road, on which alone he had the protection of the law against his enemies. If there were no ships at the port ready to sail, he had to walk into the sea to demonstrate his readiness to leave, and this he had to do every day until he sailed.16 Offenders often did abjure the realm, as many as 1000 a year. In Wiltshire in the reign of Henry III sixty-six malefactors, six of them women, chose to go into exile rather than surrender to the law; and some years later in Cornwall, seventy-eight malefactors did so, most of them robbers.17

  Whil
e malefactors frequently escaped by seeking sanctuary or by bribing court officials and jurors when they did come to trial, they could also evade justice by taking advantage of the pardons offered to them in return for a year’s campaigning in the army. Many did so; and the far from universal adoption of surnames ensured that these pardons often passed from hand to hand without the possibility of a court being able to determine whether or not those who held them were entitled to do so.

  Yet although thousands of malefactors escaped justice by one means or another, there did exist systems of law enforcement which were intermittently successful in making arrests. Since the time of the Saxon kings, the underlying principle of law enforcement had been one of mutual responsibility. Men had been associated in tithings, originally groups of ten men responsible for each other’s good behaviour, and in territorial divisions known as hundreds which William the Conqueror had found a useful instrument. Whenever a member of his Norman garrison was found dead within its boundaries, for instance, the murderer was presumed, without proof to the contrary, to have been a Saxon; and the hundred had accordingly to assume the responsibility for paying the fine for murder. By the end of the thirteenth century much of the significance of the hundred had been lost; but, theoretically at least, it still held a responsibility for crimes committed within its boundaries and had to answer the summons of the king’s officers in times of danger.