By Sword and Fire

by Sean McGlynn

  Crime figures for our own high-tech, bureaucratic times are sufficiently dubious and malleable to render medieval crime rates even more problematic. Thirteenth-century evidence suggests that for every twenty villages there was one annual killing. As already mentioned, tools of all varieties, especially knives, were ever at hand, and the lack of medicinal knowledge and good practice could make even a minor wound potentially dangerous. Common, too, were other violent crimes such as rape and arson. Arson was particularly feared and condemned in a world of timber and straw. Thirty-five people found guilty of the great fire that destroyed Norwich in the 1270s were hanged and burned, the fate also of the Carlisle arsonist two decades later in 1292. John Hudson’s recent monograph on the formation of the common law in Anglo-Norman and Angevin England notes how most minor infringements and disputes would never surface in the sources. However, he shows how some of these minor difficulties and petty circumstances did develop into major cases. The mother of Hugh of Moreville (one of Thomas Becket’s assassins) had her advances to a young man thwarted. In revenge, she contrived a situation in which it appeared (falsely) that the young man was about to attack her husband with a sword, and she publicly accused him of such. For this he was condemned to death; he was boiled alive. (Boiling, a favoured French method of execution, was more common in the Channel Islands than in mainland England.) Malice and ill intent towards neighbours were to be instrumental in later inquisitorial procedures.

  It was the collective responsibility of communities to maintain law and order in their vicinity and to bring criminals to justice. Punishment could also be communal. William the Conqueror enforced the murdrum (murder) fine: if an unrecognized body was discovered, it was presumed to be French; unless nearby villages could prove otherwise, they were subjected to a monetary penalty, which could be very onerous. Through a system of frankpledge and tithings (in which groups of ten freemen were responsible for the actions of the others), and through peer pressure and punitive authority, order was largely maintained. Judgment could only be passed down and sentence carried out if the culprit had been apprehended. Flight after the deed was common and, given the draconian punishment waiting, often sensible. Those who avoided justice were outlawed and, if subsequently caught, could be executed immediately their outlawry was established.

  Of those relatively few cases of wrongdoing that came to court, trial by ordeal or battle was commonly undertaken. Ordeal took the forms of water or burning iron; the latter was the standard test for women, while men confident in their prowess and strength tended to opt for battle. Neither ordeal was undertaken lightly. ‘Fear of God, the elaborate ritual build-up, the certainty of physical pain in trial by hot iron, the potential of execution following failure, could all encourage submission in the hope of a settlement which would at least leave one alive and unburnt.’7

  Both ordeal and battle called upon God’s judgement; both employed violence in the process of determining justice. Ordeal by water offered reasonable chances of success: over sixty per cent of those taking it passed. It involved the immersion of a suspect in a large pit of water. The water had been blessed and thus purified. If the suspect sank beneath the surface it signified that he or she was accepted by the pure water and was therefore innocent; if the suspect floated, the water had rejected him and he was therefore guilty. This process of dipping is more familiar to modern eyes from pictures of witch hunts in the Early Modern era. The chances of success in ordeal by water could be dramatically improved if those undergoing it counter-intuitively exhaled before submersion. The hot iron left more to chance. The accused was made to carry a burning rod over a defined number of spaces; the hand was then bound for three days. When the binding was removed, the hand was inspected. If the hand was healing cleanly the suspect was innocent; if the hand was infected, he was guilty. In the 1170s a defendant by the name of Ailward requested either judicial duel or ordeal by fire, but was offered only ordeal by water. He failed the ordeal and, before a large crowd, he was mutilated, losing his eyes and testicles. By this time the use of ordeal had been extended, the water form taking priority as it offered an instant judgement. The legal reforms of Henry II, as laid down in the Assizes of Clarendon and Northampton, stipulated the loss of a foot and the right hand for those failing the ordeal.

  Trial by battle was a Norman introduction to England. It was more popular than ordeal by water, the water form being associated with a lower status. Battle is rather a grandiose term for what was in effect a wrestling and bludgeoning act. The usual weapon was a wooden staff. The early thirteenth-century legal treatise known as Bracton (officially entitled On the Laws and Customs of England, it was largely written before its attribution to the supposed author, Henry Bracton), commented that for trial by battle a good set of incisors was important to a successful outcome. The weapons were not obviously lethal, as death in combat would prescind the failed duellist from the necessary judicial punishment. In the late twelfth century, the sacrist of Canterbury cathedral oversaw a duel between two peasants, disputing an accusation of theft; he hanged the vanquished party. The use of champions was strictly limited and was more common in clerical disputes between men of the cloth, who were fortunately (for them) forbidden to shed blood.

  As the legal system developed, so greater emphasis was placed on the death penalty. This usually entailed hanging. A spectacular example of this is given in the Anglo-Saxon Chronicle from 1124, when forty-four thieves were hanged in one mass execution. Of the gruesome methods of despatch available and utilized, the nobility abhorred hanging as the worst death of all, as it denoted common criminality and low status. Women could expect to be burned to death, as Alice of Wheatley was in the early thirteenth century for the murder of her husband. Infanticides were torn apart by four wild horses. Clemency meant commuting the death penalty to mutilation: eyes, noses, ears, hands, feet and testicles were the most frequent payments for life; in many cases, mutilation was the standard, mandatory sentence. Henry I, outraged at deficiencies in his coinage, had the moneyers’ testicles and right hands cut off. Such leniency could also serve a purpose: the survivors were a living testament to the harsh justice meted out to wrongdoers. Deterrence – either through death or mutilation – was an essential element of medieval spectacles of punishment. Public executions and displays of outlaws’ heads in prominent places were both common and exemplary, and survived long after the Middle Ages and its barbarities had faded away.

  The right to exercise capital punishment was a fundamental prerogative of authority. Despite St Thomas Aquinas’s judgement that capital punishment was the preserve of princes (who attempted jealously to guard this right), this licence was claimed and exercised by a number of authorities, chiefly lords and towns. The primary motivation in such an appropriation of rights was the authority, and hence power, that it conveyed; the gallows communicated not only threat, but also ultimate power over life and death. Overenthusiastic use of the death penalty led to reform and greater centralization in England. Cases such as the Abbot of Evesham’s court executing a thief over 4d prompted a government response to such severe sanctions against petty theft; by a statute of 1278/9, 12d became the measure of a man’s life. Diversity of authority facilitated diversity of execution. A recent study of attitudes to capital punishment in England between 1200 and 1350 reveals a wide range of methods, often based on local traditions concentrated along the south coast; here felons were flung from the cliffs of Dover, buried alive, or left on an isolated rock to drown by the tide.

  Much as society ardently supported the death of malefactors, there were signs of resentment at rich man’s justice and the impersonal handing down from high of the ultimate penalty. When, in 1285, rape was made a capital felony, ‘jurors immediately ceased to convict laymen of it, though they remained willing to convict men in holy orders, who could save their lives by claiming benefit of clergy’.8 In 1292 a fourteen-year-old thief from Westmoreland in north-west England was saved from hanging by two judges who took two years off his age. Dra
matic rescues and clerical interventions sometimes cheated the hangman. Ironically, in 1293 two hangmen who helped a condemned thief escape the gallows were themselves hanged. Research by Henry Summerson shows that as the death penalty became more widely imposed, so revulsion for it grew as it failed to represent a sense of balanced justice. He cites an appalling case from 1258, in which a woman from Woodstock was sentenced to the gallows for theft. Not only did she claim to be able to prove her innocence, she was also heavily pregnant. (Pregnant women were normally executed only after having given birth.) The court emptied, people refusing to participate in the carrying out of the sentence. It seems that people wished a violent end for violent people; petty thieves merited severe punishment, but not to this extreme.

  The Church usually aided and abetted the full vigour of the justice system, but occasionally it mitigated excessive sentencing. Many a felon was condemned to death in a Church court. In the late twelfth century Ranulf le Taburer was sentenced to the gallows by a court of the Abbey of Glastonbury in Somerset for theft; after burial he was exhumed and hung from a tree. As in all areas of medieval government, Church and State worked hand in hand. Being men of peace, the clergy relied on swift retribution against wrongdoers as a means of protecting the Church. Clerical courts, as we have noted, commonly ruled on secular crimes; criminous clerks, however, claimed exemption from secular courts. Some recent research into homicide in the ecclesiastical court of fourteenth-century Durham in north-eastern England sheds new light on this area. In 1370, Archdeacon William de Beverley stood accused of malicious homicide (the victim being his niece’s husband). His trial was recorded in a twelve-thousand-word episcopal register. The archdeacon’s presentation and manipulation of five well-prepared and co-ordinated eyewitnesses enabled him to successfully defend himself against the charges, but at great cost to his own reputation, which was further tarnished in an unusual, follow-up secular trial. He was acquitted and, officially, exonerated; but William felt it prudent nonetheless to move to Westminster for his personal safety. The close co-operation between episcopal and royal authorities in this case demonstrates the vested interests of both in the maintenance of social order, and that in medieval communities ‘the condign punishment of individuals, lay or clerical, who transgressed social mores sometimes mattered more than the strict preservation of jurisdictional boundaries’.9

  Later medieval England is often depicted as being as anarchical as the country, like Europe in general, degenerated in the wake of the systemic shock from war and plague: the Hundred Years War and the Black Death. Estimates for medieval England suggest violent crimes at the annual rate of twenty per hundred thousand of population, ten times the rate of the nineteenth century. However, this may be overstated, especially for the late medieval period. In nearly a century of correspondence, the Paston Letters (1424–1518) reveal that the family experienced only twenty-six cases of violence to themselves or their neighbours (including injuries incurred from sporting events or incidents). One explanation for this benign environment (which should emphatically not include the border regions) is, paradoxically, war. War destabilizes society like few other phenomena, but prior to the 1450s England was fighting its war in France, not in England. The result was relative peace at home and the opposite for war-torn Europe, where a state of war encouraged further acts of non-military violence. Thus, during particularly intense phases of the Hundred Years War, many potential and actual lawbreakers were exported to the continent, where their violent tendencies were rewarded rather than condemned. But it should be remembered that many killings involved not weapons of war but everyday implements, normally associated with work. In her study of violence in East Anglia during the period 1422–42, Philippa Maddern has calculated that over one-quarter of murder cases involved such tools, while many others involved no weapons at all. Two examples illustrate the point: in 1428, while John Wysbeche was working alongside John Colley clearing out a drain, Wsybeche struck down and killed Colley with his turf shovel; a trial from 1434 examined the death of Richard Tarcel, killed by Elesius Tomesson wielding a hedge stake.

  Public executions continued apace, a warning to those who offended God and his divine order. Although premeditated and unintentional homicides were differentiated, violent intent was foremost in a jury’s mind. Thus two dissimilar cases from medieval England met with the same judgement. In one, Richard Fayrcock and Martin Budde were found guilty of calculated murder. They buried their victim in a deep grave, carefully arranging and camouflaging the soil to prevent detection. Both were condemned to hang but Budde, pleading clergy, escaped Fayrcock’s fate. When Thomas Elam attacked Margaret Perman in his attempt to rape her, he broke three of her ribs and bit off her nose. Her wound became infected and she died; Elam was hanged for murder, although this was not premeditated. However, perhaps the extent of violent crime is not so important as the extent of violent, public punishment against all forms of crime: approximately eighty per cent of all executions in England were for non-violent offences, predominantly property crime.

  By and large, similar attitudes to violence in both rulers and ruled existed throughout Europe. Here, as in England, monarchs held their position by divine right, and so punishment for acts against the body politic drew on themselves divine retribution. Ideas on punishment went back to Roman times (the Holy Roman Empire of the Middle Ages essayed to imitate its more illustrious classical predecessor) and to the early Church, with its long line of martyrs. In Europe we can perhaps discern some earlier appearances of punishments that were to develop later in England, such as the commutation of the death penalty to mutilation: for example, in the early seventh century the Visigoths sometimes used blinding as an alternative to capital punishment. As discussed, mutilation had a visual, minatory effect, but it also conveyed other intentions. Sometimes these were unsubtle but effective: a thief without hands was unlikely to resume his career as a pickpocket. Other times the intent was more subtle: at least one early medieval source justifies blinding so that the guilty party could not see the damage he had wrought, and so take no satisfaction in it.

  Certain crimes had designated punishments, as with mutilation for counterfeiters in England, boiling in France. In Europe and in the Byzantine Empire, blinding was inflicted upon political criminals and became increasingly widespread from Charlemagne’s time. As a form of mutilation, it allowed the offended ruler to display clemency for crimes that warranted death: the sources praise Charlemagne and Pippin who, having quelled revolts in 786 and 792, had the conspirators blinded instead of killed. Similarly, over three centuries later, the French chronicler Suger notes the mercy of Henry I of England towards a chamberlain who attempted to kill him: the chamberlain suffered blinding and castration, instead of hanging as the crime merited. On occasion, the process of inflicting such terrible wounds did result in actual death. One contemporary account of King John’s murder of his rival and nephew Arthur of Brittany mitigates his culpability by explaining that John had only castrated Arthur, the victim dying from shock. It is interesting to note how varying forms of punishment developed their own theological justification: blinding, for instance, was couched in terms of the repudiation of divine light that God had showered on his temporal prince.

  A recent groundbreaking study by Trevor Dean, Crime in Medieval Europe (2001), reveals similarities in crime patterns to England, but also differences in judicial approach. Again, the influence of imperial Rome is to the fore, with England diverging from Europe to construct common law and frankpledge later declining with the greater social mobility of the fourteenth century. However, the later medieval period saw areas of convergence: trial by ordeal receded as lawyers trained in universities grew in influence; and central, monarchical authority took an ever greater role in persecuting criminals. But Europe generally pursued a more inquisitorial line, perhaps not surprisingly influenced by ecclesiastical inquisition processes. This permitted the creeping inclusion of torture into criminal cases.

  By the thirteenth century, tort
ure was becoming an established measure in France, Italy and Germany; by the fourteenth century it was common procedure. At first, judicial torture was carefully regulated and could be applied only once, but inevitably it was increasingly employed with fewer and fewer safeguards. Initially, confessions elicited by torture had to be ratified beyond the confines of the torture chamber, but such refinements were frequently dispensed with. In late medieval Venice and Paris torture was the norm in theft trials; distorting limbs, fracturing bones and even death from its excessive application are all recorded. Understandably, ‘some suspects clearly confessed to anything in order to end the pain’.10 Sometimes, as in Florence in 1369, written complaints were made about the all too early recourse to torture in criminal trials. It is possible that such reactions occasionally had some effect; in Paris in 1488 the record reveals that increasing pressure from relatives and friends meant that only twenty out of six hundred prisoners underwent torture. However, torture, unlike punishment, was rarely public; it was a disreputable means to an end that did not warrant publicity. After all, the vile methods of torture might, in the end, have been applied to victims ultimately cleared of the crime under investigation. In 1376 in Vauvert, a suspected counterfeiter was put to the rack three times before being set free. Another case from the same century concerns Finuccio de Marti, who was tortured four times for tax evasion before being released by the judge.

  As with modes of capital punishment, the variety of tortures was seemingly limited only by imagination; indeed, some torture techniques were adapted for public execution. No doubt there was also a diabolical exchange of ideas between the military and civil spheres. Unlike punishment, torture did not command universal popular approbation, but, as a window into medieval attitudes, it reveals to what frightening extremes the authorities would go in sanctioning official forms of violence in their quest for law and order. Techniques ranged from the most intricate and inventive devices to simple noninterference (neglect, exposure, starvation) and were often combined with the death penalty.