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- Herausgeber: Skyline
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
- Veröffentlichungsjahr: 2019
Prisons as places of detention are very ancient institutions. As soon as men had learned the way to build, in stone, as in Egypt, or with bricks, as in Mesopotamia, when kings had many-towered fortresses, and the great barons castles on the crags, there would be cells and dungeons in the citadels. But prisons as places for the reception of “ordinary” (as distinct from state or political) criminals for definite terms only evolved in England many centuries afterwards; whilst imprisonment as a punishment in itself, to be endured under rules made expressly punitive and distressful, may be described as essentially modern, and reached its worst phase in the nineteenth century.
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George Burnham Ives
Table of contents
CHAPTER I PENAL METHODS OF THE MIDDLE AGES
CHAPTER II THE WITCH TRIALS
CHAPTER III TREATMENT OF THE INSANE
FOOTNOTES FOR ALL CHAPTERS
CHAPTER I PENAL METHODS OF THE MIDDLE AGES
Prisons as places of detention are very ancient institutions. As soon as men had learned the way to build, in stone, as in Egypt, or with bricks, as in Mesopotamia, when kings had many-towered fortresses, and the great barons castles on the crags, there would be cells and dungeons in the citadels.[1] But prisons as places for the reception of “ordinary” (as distinct from state or political) criminals for definite terms only evolved in England many centuries afterwards[2]; whilst imprisonment as a punishment in itself,[3] to be endured under rules made expressly punitive and distressful, may be described as essentially modern, and reached its worst phase in the nineteenth century.[4]
The Teutonic Tribes of the bays and forests were fierce and free. They exemplified, in fact, the theory of Nietzsche, that liberty cannot be granted but must be taken.[5] They had not cowered before Oriental superstitions,[6] and as they lived in widely scattered hordes a central government could not impose its yoke upon the savage warriors. With the wild clansmen of the fierce Norse nations, where every man was always ready armed[7] and boys received their weapons at fifteen,[8] the great desideratum was the maintenance of peace.
The instinct of retaliation throbs in all men, and vengeance swift and bloody would be sought for, which, where the kindred ties were close and strong, might spread a feud through villages and clans, such that the very children might be born devoted to the duty of a family revenge. The Teutonic nations, like the free peoples they were, always assumed that for a crime to have been committed, an individual must have suffered injury.[9] And they conceived the aggrieved plaintiff as no cowed weakling (or he would not have counted), but as a fighting freeman with spear and shield, who would repay a wrong with interest, and whom, if slain, his kinsmen would avenge.
Thus the placation[10] of the injured party was the objective of the oldest laws. Allowance was made for human feelings[11] and impulses. Some ancient codes[12] permitted him like for like; an eye for an eye, and a tooth for a tooth, in the sense of so much, and no more.[13] But the Teutonic laws offered him compensation,[14] and, when it was possible, compelled him to accept it.[15] Thus crimes were met by restitution, not by punishment.[16]
Every sort of injury which one freeman could do to another was first of all atonable by bōt (a money compensation paid to the injured man or his relations).[17] What this fine was depended firstly upon the nature and extent of the damage done, and secondly upon the rank and importance of the person injured.[18] For every man had his class and value; and every form of aggression against a freeman, from a wound which killed him outright to a blow which deprived him of a single tooth,[19] as well as the theft of anything he possessed, had its appointed fine according to his wer.[20]
The tariffs varied with the different tribes,[21] but the main principle—of compensation—extends through all. In Mercia the wer-gild of a king was fixed at 7200 shillings or 120 Mercian pounds of silver,[22] to which great sum was added the cynebot of a similar amount which was payable to his people.[23] The wer-gild of a thane (i.e. county magnate) came to 1200 shillings, that of a ceorl (labourer) was 200 shillings.[24]
These murder-fines, however, were much heavier than they look;[25] those of the kings,[26] numerous as they were, would in most cases have been hopelessly unpayable by private people, and those of the thanes by humble families. Even the wer-gild of the ceorl, or labourer, which was 200 scillings, or about four pounds, was not inconsiderable when we remember that in Æthelstan’s time one scilling would buy a sheep, and six scillings (or thirty pence)[27] an ox—the cost would be the price of a small herd.[28]
So that frequently the man-fines[29] were never paid, and then we perceive that the wise compensation system of the codes arose more out of the fear of the vendetta than from humane principles;[30] if they were not paid, vengeance would be let loose.
If the offender were not slain or abused,[31] if he did not escape and live as an outlaw and a “wolf’s head”[32] (which was frequently done,[33] for there were some ten men outlawed[34] to every one hanged[35]), he might be sold[36] as a wite theow[37] into penal slavery.[38] For there were slaves as a class in Christendom and in England up to the twelfth century,[39] and they being helpless, like our “submerged” masses, were of little account at all in the community.
Derived mainly from the conquered taken in wars and raids,[40] their ranks were recruited by men sold for their offences, and likewise, it is said, from those who sold themselves in times of starvation;[41] many were sent as slaves beyond the seas,[42] and the fact that we find this custom repeatedly prohibited[43] testifies also to its prevalence.[44]
From the poor slaves there need be no fear of vengeance or retaliation; they were a voteless minority amidst Saxon freemen. If a slave were slain only eight shillings were payable to his kinsfolk,[45] while a man-bōt of thirty shillings was claimed by his master.[46] And that, it would seem, was all on the part of the State.[47] The Church, however, to its credit, imposed a penance, a two years’ fast.[48] Other injuries to the theow (slave) were treated with proportional mildness,[49] but of Church laws and discipline I shall have to speak presently.[50]
For the damage done by his slave the master was liable,[51] as for a trespass by his cattle.[52] For the more serious offences the theow would be handed over to the kinsfolk of the injured party, unless perchance his master should redeem him by payment.[53] If upon accusation he failed at the ordeal, he was to be forthwith branded the first time;[54] but the second conviction would be capital, “seconda vice non compenset aliquid nisi caput.”[55]
Apart from legal or revengeful penalties for wrongs done to any freeman,[56] the theow was absolutely at the mercy of his master.[57] If he were not allowed to “redeem his hide” by such small compensation or atonement of which he was capable, he might have one leg fastened by a ring to a stake, round which he would be lashed with a three-thonged whip.[58] It was composed of cords knotted at the ends.[59] If a ceorl were goaded into homicide, vengeance might then be taken upon six of his kinsfolk[60] (upon the principle that the thane had six times his value,[61] see wer-gilds, ante, and Maitland, Domesday Book, p. 53). If a theow killed his lord[62] he was to perish in torments;[63] for revenge was sweet,[64] and the strong took it without stint.[65]
Clearly, then, from the nature of early Saxon society, elaborate penal machinery had no place. The freemen atoned for their transgressions with fines when possible, and by slavery, mutilation, outlawry, or death when they could not pay. Cruelly as the slaves might be flogged or slaughtered, there were no prisons in the land even for them.[66] The villages were mere groups of wooden homesteads with barns and cattle sheds surrounded by rough stockades and destitute of roads or communications. Even the palace of the king was a long wooden hall with numerous outhouses, for the English built no stone houses and burnt down those of their Roman predecessors.[67]
The Teutons, according to Tacitus, abhorred walled towns as the defences of slavery and the graves of freedom. The Frisians forbade the construction of any walls more than 12 feet high.[68] In the course of time the crown, or central government, grew in power; the king, and even the great lords, spiritual and temporal, were able to enforce obedience and order, at any rate upon those in their neighbourhood.[69] The royal authority could defy the vendetta, and from very early times had claimed a share in the compensation,[70] so that, along with the wer-gild, payable to the injured party, the wite, or additional fine, had to be paid to the sovereign (or overlord) for the disturbance of his peace.[71]
Sometimes he would take vengeance for the State or for an aggrieved person.[72] Thus in the reign of Æthelstan a man might forfeit his hand for coining, and have it nailed over the door of the mint;[73] and in the reign of Cnut a woman might lose her nose and ears if she committed adultery. In the early period these mutilations appear to have often been intended to be mortal, for in the laws of Alfred and Guthrum we read that “If a malefactor, having forfeited himself, has had a limb cut off, and, being left to himself, survive the third night; afterwards he that is willing to take care of his sore and soul may help him with the Bishop’s leave.”[74]
But the maimed criminals were also allowed at large to be a living warning to others. That the Saxons could be cruel enough when bōt was not made, and to habitual criminals and slaves, we have seen already; how barbarous the amputations were may be gleaned from the words of our Danish monarch: “... At the second time let there be no other bōt if he be foul” (at the ordeal) “than that his hands be cut off or his feet, or both according as the deed may be, and if then he have wrought yet greater wrong, then let his eyes be put out, or his nose and his ears and the upper lip be cut off; or let him be scalped ... so that punishment be inflicted and also the soul preserved.”[75]
William the Norman enjoined that offenders should not be slain outright, but hacked about.[76] “Interdicimus,” he commands, “eciam ne quis occidatur vel suspendatur pro aliqua culpa sed enerventur oculi, et abscindantur pedes vel testiculi, vel manus ita quod truncus remaneat vivus in signum prodicionis et nequicie sue.”[77]
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.
