Life in a Medieval Village - Frances Gies [82]
Trial by combat was by now archaic, as was trial by ordeal (immersion in water or exposure to fire), condemned by the Church in 1215. The sense of participation by Providence in the judicial process which combat and ordeal had invoked was retained in the more civilized method of compurgation, or joint oath-swearing on the sacred relics.
In 1285 Edward I issued the Second Statute of Westminster, holding the men of the village and hundred collectively responsible for arresting and holding malefactors—in effect, making the hue-and-cry royal as well as manorial law. Not very surprisingly, large numbers of wrongdoers continued to escape capture. Bands of thieves flourished, terrorizing whole districts. Sometimes they were abetted by wealthy sponsors known as “receivers” or “maintainers.” As John Bellamy observes, “There was…less of a gulf between honest men and criminals than in modern society,” a situation that also made corruption of officials easier.77
Of those tried by royal justice sitting in cases where the accused was actually detained, only some 10 to 30 percent of the defendants were convicted. One popular technique for evading punishment was the claim of “benefit of clergy,” meaning that the accused was a cleric and could only be tried in Church court where capital punishment was not used. Felons not only took the tonsure (clerical haircut) in prison but even learned to read. Benefit of clergy was of limited value to habitual criminals, however, since it could only be claimed once.78
The same limitation applied to another Church-related evasion of justice, the sanctuary. All consecrated buildings and land, including every parish church and churchyard, were sanctuary, on a one-time basis, but not for everyone. Excluded were notorious offenders, traitors, heretics, sorcerers, clerics, perpetrators of felonies in church, criminals caught red-handed, and minor offenders in no danger of loss of life or limb. The fugitive had to confess his misdeeds, surrender his weapons, attend Mass, and ring the church bells. In a parish church, where he could remain for forty days, he had to beg food from the priest. The royal coroner came, heard his oath to abjure the realm forever, assigned him a port or border town by which to depart, and saw him branded on the thumb with an A (for abjuror). He was obliged to keep to the highway, to avoid footpaths, to take the first ship available, and until one appeared, to walk into the sea up to his knees each day in sign of his renewed intention. Very often, however, the abjuror never reached his assigned port, but went into hiding as an outlaw.79
Prison as punishment was virtually unknown to the Middle Ages. The Church courts dealt in penances and pilgrimages, the manor court in fines, and the royal court in death penalties, abjuration, and outlawry. The outlaw could be captured or slain by anyone, and his goods appropriated. Outlaws, however, often had powerful protectors and sometimes popular sympathy. The prototype of Robin Hood probably flourished in the late thirteenth or early fourteenth century rather than in the twelfth century of Richard Lionheart favored by Walter Scott.80
Capital punishment was generally by hanging, with the chief alternative, reserved for better-class offenders, the headsman’s axe. Since hanging was by strangulation, the axe was normally less cruel. By a custom that was a relic of ancient Germanic law, the felon’s principal accuser, usually the victim or a relative, was often obliged to find a hangman or perform the office himself. Lack of professionalism may account for recorded cases of the hanged man’s surviving.
Deliberately cruel executions were limited to extraordinary crimes: heresy, treason, witchcraft. Mutilation, a common form of punishment in the earlier Middle Ages, was rare by the thirteenth century, but a thief might still lose an ear or thumb, a rapist be castrated, or a vicious assailant blinded. The stocks sometimes caused loss of limb. Torture was a rarity, except when the defendant