Crime and Punishment in England

A Sourcebook

Andrew Barrett, Chris Harrison, Andrew Barrett, Chris Harrison

• Publisher: Routledge
• Year: 2005
• ISBN:
  9781135358624
• Edition: 1
• Topic: Storia
• Subtopic: Storia mondiale

Designed to complement "Crime and Punishment: An Introductory History" UCL Press, 1996, this sourcebook contains documents specifically selected to illuminate major issues raised in the textbook. In the first part of the book, extracts of laws and royal, local and church records from Anglo- Saxon England to the 18th century reveal changing patterns of crime and punishment. The first sociology of English crime Harman's Caveat, 1566 as well as Henry Fielding's reform proposals of the mid-eighteenth century are included and the growing use of imprisonment is reflected in the later sections.; The second part covers the 19th century. Documents range from commentaries on the day-to-day crimes of theft, drunkenness And Assault To The Sensationalism Of Garroting And Murder. Documents charting the impressive growth of the police force are included. Criminal justice is approached through the minutiae of police charge books and newspaper column's, the personal reminiscences of magistrates, the sweeping arguments of law reformers and the pleading voices of Petitioners For Mercy. In A Chapter On Punishment, The Emotions Unleashed by public hanging and transportation can be compared with the relentless monotony of prison life.

Chapter 1
Crime and Punishment in Medieval England

This chapter illustrates some of the basic concepts and practices of English medieval law, in particular the “criminal” law in the counties.

1
The origins of the English criminal legal system

“The origin of the criminal law [was] the assumption by the state of the responsibility for avenging personal injuries.”¹ What, in the case of England, did this mean in practice? The Anglo-Saxon system of criminal justice was mainly concerned to prevent feuds provoked by violent or serious crime. The system was designed to force the victim or, if he was dead or incapacitated, his family to accept compensation rather than turn to violence. The levels of compensation were established by the kings in consultation with their secular and ecclesiastical counsellors. This initiated some of England’s earliest criminal legislation, as illustrated by these early seventh-century laws of Aethelbert.

1.1
Anglo-Saxon Laws

The Laws of Aethelbert²

10. If a man lies with a maiden belonging to the king, he shall pay 50 shillings compensation.

14. If a man lies with a nobleman’s serving maid, he shall pay 12 shillings compensation.

16. If a man lies with a commoner’s serving maid, he shall pay 6 shillings compensation.

21. If one man slays another, the ordinary wergeld to be paid as compensation shall be 100 shillings.³

22. If one man slays another, he shall pay 20 shillings before the grave is closed, and the whole of the wergeld within 40 days.

23. If a homicide departs from the country, his relatives shall pay half the wergeld.

40. If an ear is struck off, 12 shillings compensation shall be paid.

41. If an ear is pierced, 3 shillings compensation shall be paid.

42. If an ear is lacerated, 6 shillings compensation shall be paid.

43. If an eye is knocked out, 50 shillings shall be paid as compensation.

Ine’s Laws⁴

In general, financial compensation seems to have been preferred to corporal punishment, as this late seventh-century law of Ine’s illustrates.

12. If a thief is taken [i.e. caught in the act], he shall die the death, or his life shall be redeemed by the payment of his wergeld.

In the above case, the offender’s wergeld determines the level of compensation.Only if the criminal was a notorious evil-doer and a danger to the whole community was corporal punishment insisted upon.

37. If a commoner has often been accused of theft and is at last proved guilty… his hand or foot shall be struck off.

1.2 Trials

Compurgation

One of the two basic methods of proof in Anglo-Saxon England was trial by compurgation. Under this system law-worthy men, the compurgators, were summoned to swear to the truth of the submission of the defendant or complainant, NB not on the basis of evidence presented in the court but on their knowledge of the disputants and the alleged offence. It was, says Warren, a form of arbitration with a tendency towards compromise.

Trials by ordeal

But what happened if one could not get one’s neighbours to swear on one’s behalf or if the crime was so serious that such methods were deemed insufficient? In those cases trial was by ordeal. In these trials it was God who was pronouncing judgment. The Latin for an ordeal was judicium dei, i. e. the judgment of God.

There were four basic forms of trial by ordeal: by hot iron, by hot water, by consecrated bread (the corsnæd), and by cold water.

Below is an Anglo-Saxon decree laying down the rules by which hot iron and hot water ordeals were to be conducted. Note the vital function of the church in this process.

Decree concerning hot iron and hot water ordeals⁵

And with regard to the ordeal, by the commands of God and of the archbishop and all the bishops, we enjoin that no one shall enter the church after the fire with which the iron or water for the ordeal is to be heated has been brought in, except the mass-priest and him who has to go to trial. And from the stake to the mark, nine feet shall be measured by the feet of him who goes to the trial.⁶

1. And if the trial is by water, it shall be heated until it becomes so hot as to boil, whether the vessel (containing it) be made of iron or brass, lead or clay.
2. And if the accusation is “single”, the hand shall be plunged in up to the wrist in order to reach the stone; if it is “threefold”, up to the elbow.
3. And when the ordeal is ready two men shall go in from either party, and they shall be agreed that it is as hot as we have declared.
4. And [then] an equal number of men from each party shall enter, and stand along the church on both sides of the ordeal, and all these shall be fasting and shall have abstained from their wives during the night; and the mass-priest shall sprinkle holy water over them all, and each of them shall taste the holy water. And [the mass-priest] shall give them all the book⁷ and the symbol of Christ’s cross to kiss. And no one shall continue to make up the fire after the consecration has begun, but the iron shall lie upon the embers until the last collect. Then it shall be laid upon the post, and no other words shall be spoken in the church, except that God be earnestly prayed to make clear the whole truth.⁸
5. And the accused shall go to the ordeal, and his hand shall be sealed up; and after three days⁹it shall be inspected [in order] to ascertain whether it has become discoloured or remained clean within the sealed wrappings.
6. And if anyone breaks these rules, the ordeal shall in his case be invalidated, and he shall pay a fine of 120 shillings to the king.

Of incendiaries and those who secretly compass death¹⁰

This decree illustrates one of the special circumstances in which ordeal was used.

With regard to incendiaries and those who secretly compass death, we have declared that the oath shall be augmented threefold and the weight of the iron used in the ordeal shall be increased until it weighs three pounds. And the man who is accused shall go to the ordeal, and the accuser shall choose either the ordeal by water or the ordeal by iron whichever he prefer. If he [the accused] cannot produce the oath and is proved guilty, the chief men of the borough shall decide whether his life shall be spared or not.

Trial by Corsnæd

Trial by corsnæd was where the defendant had to swallow a morsel of barley bread or cheese (usually blessed). If he failed so to do, he was deemed guilty as this prayer, invoked at the time of such an ordeal, reveals.¹¹

O Lord Jesus Christ…grant, we pray thee, by thy Holy name, that he who is guilty of this crime in thought or deed, when this creature of sanctified bread is presented to him for proving of the truth, let his throat be narrowed, and in thy name let it be rejected rather than devoured…

Ordeal by cold water

In this ordeal the defendant was lowered into a vessel of water. If he floated, he was guilty; if he sank, innocent. This ordeal was considered particularly undignified and was reserved for serfs. The introduction of it to all cases brought under the Assize of Clarendon in 1166 hastened the decline of its use.

Let the hands of the accused be bound together under the bent knees after the manner of a man who is playing the game of champ-estroit. Then he shall be bound around the loins with a rope strong enough to hold him; and in the rope will be made a knot at the distance of the length of his hair; and so he shall be let down gently into the water so as not to make a splash. If he sinks down to the knot, he shall be drawn up and saved; otherwise let him be adjudged a guilty man by the spectators.¹²

Trial by ordeal was less used after 1066 and was banned by the Fourth Lateran Council in 1215. In England trial by battle seems to have replaced trial by ordeal in many cases.

Trial by Battle

Trial by battle was introduced into England by the Normans. There is no English account that has survived, so here is a contemporary chronicle account of a trial by battle following the murder, by his vassals, of the Count of Flanders in 1127. One of the conspirators, Guy of Steenvoorde, was challenged to trial by battle by Herman the Iron. This is the story of that encounter.

Herman the Iron¹³

Both sides fought bitterly. Guy had unhorsed his adversary and kept him down with his lance just as he liked whenever Herman tried to get up. Then his adversary, coming closer, disembowelled Guy’s horse, running it through with his sword. Guy, having slipped from his horse, rushed at his adversary with his sword drawn. Now there was a continuous and bitter struggle, with alternating thrusts of swords, until both, exhausted by the weight and burden of arms, threw away their shields and hastene...