Violence and the Law in Medieval England
How dangerous was life in the Middle Ages? Sean McGlynn gets to grips with the level of violent crime, and the sometimes cruel justice meted out to offenders.
The medieval world has an understandable reputation for brutality. In 2002, during the trial of Slobodan Milosevic at the war crimes tribunal at The Hague, the chief prosecutor, Carla del Ponte, accused the Butcher of the Balkans of 'medieval savagery'. A common perception of the Middle Ages is that society was brutalized by constant violence and even partly desensitized against death by the persistent presence of the Four Horsemen of the Apocalypse constantly trampling their way back and forth across Europe.
However, although the Middle Ages frequently did succumb to war, famine and plague, this neither inured people to the devastation of loss nor, of course, did it fundamentally alter human nature in any way. In fact, to a significant degree, the awareness of danger and violence was in itself a major driving force behind society's seemingly cruel and bloodthirsty acts that have often come to characterize the medieval world. This was most clearly manifested in the area of crime and punishment, adding to what Johan Huizinga influentially referred to as the 'the violent tenor of life'. In his famous The Waning of the Middle Ages (1924), Huizinga says that public executions in late medieval France and the Netherlands 'were spectacular displays with a moral. For horrible crimes the law invented atrocious punishments'. Crime was a
... menace to order and society, as well as an insult to divine majesty. Thus it was natural that the late Middle Ages should become the special period of judicial cruelty.
However, pressures for the severest forms of punishment came as much from below as from above; indeed, authorities that were deemed too lenient or lax in carrying out sentences were liable to come in for harsh criticism from ordinary people. In 1389 in England, public opinion led to Parliament successfully petitioning for the limiting of pardons granted for violent crimes. (This was an old problem: governments would commission trawls of prisons in order to boost army recruitment, as Edward I (1272-1307) did in 1284 for his Gascon campaign.)
Throughout the whole medieval period there was popular demand for malefactors to receive punishment that was both harsh and purposefully terrifying. This reflected people's investment in the social order and their anxiety at any perceived threat to it. Such was this enthusiasm and the desire to see justice being done there was even an executions transfer market: bids were made to stage the executions of condemned men in front of home crowds.
Public executions were pitiless affairs. In Paris in 1427 an official harangued and set upon a condemned man attempting to make his last confession to a priest; he then assaulted the hangman for allowing this act of spiritual reconciliation. The unnerved executioner made a mess of the hanging and the condemned man fell to the ground, breaking a leg and some ribs. He was made to drag himself back up to the scaffold for completion of the sentence.
Legitimate, judicial violence was deemed essential in the fight to suppress illegitimate, random violence. The monarch, in his role as the supreme judge, was expected to employ whatever violence was necessary in pursuit of social stability and safety for his subjects. Mutilations sent out a message of warning and deterrence; executions offered the ultimate guarantee against repeat offenders.
Cautionary and minatory forms of visual, legal violence were everywhere in the Middle Ages, as Barbara Tuchman makes gruesomely clear in her book A Distant Mirror: The Calamitous Fourteenth Century (1978):
The tortures and punishments of civil justice customarily cut off hands and ears, racked, burned, flayed, and pulled apart people's bodies. In everyday life, passers-by saw some criminal flogged with a knotted rope or chained upright in an iron collar. They passed corpses hanging on the gibbet and decapitated heads and quartered bodies impaled on stakes on the city walls.
These exhibitions were not always just crude displays of terror; they also frequently promoted reassurance that justice was being served to protect society. Fear bred suspicion, the combination sometimes being sufficient for conviction: in early fourteenth-century London, trial witnesses declared that Walter Foyle 'commonly leaves the city with arms and a greyhound at the time of vespers, and returns in the morning'; this was taken as a sign that he was up to no good and was enough to land him a lengthy prison sentence. But with few prisons and no police force, severe punishment was deemed invaluable as a deterrent to crime; the more extreme the crime, the more extreme the punishment it warranted.
The need for governmental action against violent crime was strong. Manor records from England reveal that deaths from manslaughter were far commoner than accidental deaths. Then, as now, protagonists of violent crimes came in all shapes and sizes, with young men forming the largest group of those responsible for manslaughter and murder. Medieval crime statistics are hugely problematic. Evidence from England suggests that in the thirteenth-century there was approximately one annual killing for every twenty villages; by the early 1500s estimates would appear to indicate violent crimes running at the annual rate of twenty per 100,000 of population, ten times that of the nineteenth century. Fatalities were increased by the lack of medicinal knowledge and good practice which could render even a minor wound potentially dangerous. When, in the fifteenth century, 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; as we shall see below, he might otherwise have expected to have got off lightly on the rape charge.
Tools of all varieties - especially knives and agricultural implements - were ever at hand should an argument flare into violence. In her study of violence in East Anglia during the period 1422-42, Philippa Maddern (1992) has calculated that over a quarter of murder cases involved such tools. 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. More obvious weapons were sometimes used for less than obvious injuries: in early fourteenth-century Lincolnshire, Ralph Tokel broke both arms and three ribs of Hugh Swanson before using his sword to cut away the soles of his victim's feet.
Even court cases might offer theatres of violence. These came in the form of ordeal by water or iron, extant from Anglo-Saxon times, and trial by battle, the former being the standard test for women, the latter for men. Ordeal by iron was the more traumatic of the two. The accused was made to carry a burning rod for a defined distance before having their hand bound for three days; if the hand was infected by the time of the bandage's removal the person was deemed guilty.
Over time the water ordeal took increasing precedence, courts preferring its instantaneous judgement. This involved a suspect being immersed in blessed, and hence purified, water. On the principle that this purity would reject a person tainted by grievous sin, floating was taking as sign of guilt and sinking a sign of innocence. Sixty per cent of those undergoing the experience passed the test. In the 1170s a defendant by the name of Ailward, accused of theft, was one of the unlucky 40 per cent: he was publicly castrated and had his eyes put out (although this was not the end of the story, as we shall learn later). It was around this time that Henry II's legal reforms 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 which was associated with a lower social 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) commented that for trial by battle a good set of incisors was important to a successful outcome. The weapons were not designed to be 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. The number of cases tried by ordeal and battle declined in the later medieval period as lawyers trained in universities grew in influence and central, monarchical authority took on an ever greater role in persecuting criminals.
As the legal system developed, so greater emphasis was placed on the death penalty. The most common form of execution was hanging. A spectacular example of this is given in the Anglo-Saxon Chronicle from 1124, when forty-four thieves were hung 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: the cleric who killed the Earl of Huntingdon's son in the twelfth century suffered this fate, his limbs tied separately to the tails of four horses.
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. Diversity of authority led to diversity in executions. One study of 1200-1350 shows that in southern England local traditions developed along the south coast: here felons were flung from the cliffs of Dover, buried alive, or left to drown on an isolated rock by the tide.
Over-enthusiastic 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 four pence prompted a government response to such severe sanctions against petty theft; by a Statute of 1278/9, twelve pence became the measure of a man's, life. 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. 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.
As the death penalty became more widely imposed, so revulsion for it grew as it failed to represent a sense of balanced justice. In an appalling case from 1258, 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 carrying out the sentence. It seems that people wished a violent end for violent criminals; petty thieves merited severe punishment, but not to an extreme that was considered merely vindictive.
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. Leniency could serve a purpose: the survivors were a living testament to the harsh justice meted out to wrongdoers. Henry I (r. 1100-35), outraged at deficiencies in his coinage, had the moneyers' testicles and right hands cut off. If a crowd was denied the spectacle of an execution on the allotted day, occasionally there was some gruesome compensation. In England in 1221, Thomas of Eldersfield was reprieved from hanging at the last moment; in a show of mercy, he was blinded and castrated instead. Robert Bartlett describes the scene: 'the eyes were thrown to the ground, the testicles used as footballs, the local lads kicking them playfully at the girls'. Crowd participation was very much part of the punitive process and spectacle. Corpses of executed criminals often became playthings, especially for youths, who would often drag the bodies around, kick and beat them, and sever parts from them, sometimes as souvenirs.
The Church usually aided and abetted the full vigour of the justice system. While proving lenient to fellow clerics, church courts also sometimes mitigated excessive sentencing for laymen, emphasizing repentance over punishment. But this certainly could not be counted on. Many a felon was condemned to death in a church court. In the late twelfth century, Ranulf Ie 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. Clerics fared better. In the early fifteenth-century, Richard Fayrcock and Martin Budde were found guilty of premeditated murder; both were sentenced to the gallows, but Budde, pleading benefit of clergy, escaped this fate. (This benefit permitted clerics to have their cases heard in ecclesiastical courts; it was not completely abolished until 1825.) Clerics sometimes intervened in hangings, hoping to save the condemned man. St Thomas Cantilupe, bishop of Hereford until his death in 1252, had a particularly successful record. A medieval Lord Longford, he in effect became the patron saint of condemned men and his name was often invoked on the gallows. As in all areas of medieval government, church and state worked hand in hand when dealing with crime. Ostensibly being men of peace, the clergy relied on swift retribution against wrongdoers as a means of protecting the Church.
Women were obviously more vulnerable to violence than men. To some extent, wife-beating, although officially frowned upon, was considered as part of the natural order of things, but wives who attacked their husbands were deemed guilty of inverting this natural order. This notion was reinforced by the Statute of Treason of 1352 which declared that a woman killing her husband was guilty of a treasonous act. For this crime, as with many others, a woman would be burned alive. (This sentence was last carried out in England as late as 1789, by which time women could normally expect to be strangled before the burning.) Intra-familial murders were actually very low (and much lower than today); as Barbara Hanawalt has observed:
With the family as the basic unit of the peasant economy, one would no more consider killing one's wife than one's ox.
Male prejudice was highly apparent in rape cases. When rape was made a capital felony in 1285, jurors would condemn only those in holy orders as, unlike laymen, they could plead benefit of clergy to avoid the noose. The writings of misogynistic monks portraying women as stereotypical temptresses and latter-day Eves could twist opinions into expressing the view that some women deserved to be raped; the accused frequently resorted to the effective defence of besmirching the moral character of his victim. Rape, as an offence against the king's peace, was a serious crime, but one with an extraordinarily high acquittal rate. Questions of proof of consent, the lack of witnesses, and the reluctance of an all-male jury to pass a death sentence all conspired to mitigate punitive legislation. A number of studies highlight this glaring injustice. In the English Midlands between 1400 and 1430, of 280 rape cases, not one led to a conviction. For the country as a whole in the first three-quarters of the thirteenth century, only one prosecution out of 142 resulted in so much as a fine (two others, of clerics, were dealt with - how we do not know - by the more lenient church courts). It was a similar story for Europe, where rape was also a common crime: in Brescia between 1414 and 1417, of over 400 criminal sentences, only four were for rape; in fourteenth- and fifteenth-century Cerisy in France, of 344 violent crimes appearing in the courts, only eight were rape cases; and fourteenth-century Nuremberg records only eight rapes in over 700 crimes. Judicial disincentives to rape were more theoretical than practical.
The victim of rape had little recourse to justice and so might look to her own protection. Although the violence of a woman against a man was abhorrent to received ideas of the social order, exceptions could be made for self-defence: a trial in England from 1438 acquitted Joan Chapelyn who had killed the rapist assaulting her. The fact that the rapist was a Frenchman undoubtedly helped her case. Suicide was condemned as a means of escaping rape.
Women as perpetrators of violent crime and murder appear far less often in court records than men, proportionately forming an average of 10 per cent of cases in Europe. The one violent crime for which there is an inversion is infanticide. Of all the many social, economic, cultural and moral pressures that drove a mother to kill her child, perhaps the most telling was the preference for boys in medieval society. In fourteenth-century Catalonia, 80 per cent of infanticide victims were girls. Punishment varied, especially according to whether the case was heard before a secular or ecclesiastical court, the latter emphasizing repentance over punishment. Thus in Italy, where infanticide came under secular jurisdiction, we hear of a case from Bologna in 1344 in which a guilty mother was beheaded, while a mother in late medieval England was sentenced by a church court to penitential processions. England also seems to have entertained mitigating circumstances more readily: in 1342 one Alice was incarcerated to await the king's grace, judged to having been in a state of insanity when she killed her young son. For all of their disadvantages in law, women were less likely to receive corporal or capital punishment for certain offences, and far more likely to receive pardons.
England and Europe experienced a long tradition of divine intervention, whether sought or not, in matters of judicial punishments. The popular desire for justice was so strong that when temporal powers failed or were unable to prosecute, faith was placed in the supernatural world to administer judgement. An Anglo-Norman record informs us of the pickpocket caught in the act of thieving by the crimebusting St Ecgwin, who trapped the criminal's hand in the purse from which he was stealing, and then caused the hand to shrivel up.
Intervention could be merciful, too. In Norwich in 1285, Walter Eghe was pronounced dead and cut down from the gallows for burial; still alive, he took sanctuary in a church and received a royal pardon, his wondrous 'recovery' being taken as a divine sign of his innocence. (A thief hung but not killed in Oxfordshire in 1335 was not so lucky: he was buried alive.) The unfortunate Ailward, mutilated in 1170, also seemingly had his prayers answered: his lost parts were miraculously regained, although his eyes were now black and his testicles smaller.
Approximately 80 per cent of all executions in later medieval England were for non-violent offences, predominantly for property crime. There is evidence to suggest that the number of death sentences for less serious crimes was declining by the fifteenth century. One possible explanation for this might have been the reluctance to assist what nature and war had done to population levels: plague, famine and endless military conflicts had depleted workers in the field and manpower for the army, the latter recruiting increasing proportions of criminals. A further reason was the development of an ever more legalistic and literate society allowing more detailed delving into a case and greater complexity in judicial punishment. The number of prisons grew, stimulated in part by church courts attempting to adhere to the prohibition of shedding blood. There may also simply have been a drop in the crime rate.
England shared with Europe many similarities in attitudes towards violent crime, but there were also some notable differences, chiefly the more inquisitorial line of court cases on the Continent. This led to another level of horrifying violence: by the thirteenth century judicial torture was becoming an established measure in France, Germany and Italy.
Medieval jurists made juridical and philosophical arguments for the deterrent effect and for the didactic moral message of capital punishment and its efficacy in preserving social order. The population at large wished to participate in the dissemination of this message and effect, and did so through attendance and participation at public executions. Seneca's assertion that the more severe a punishment, the greater its effect on people, informed the thinking in most courts and broadly reflected the sentiment of the population. But it would be wrong to consider that a flog 'em and hang 'em mentality was the preserve of medieval mindsets: a pamphlet from London in 1701 is entitled Hanging Not Punishment Enough. There will always be votes in law and order.