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Title: Penal Methods of the Middle Ages: Criminals, Witches, Lunatics

Author: George Burnham Ives

Release date: May 16, 2019 [eBook #59520]

Language: English

Credits: Produced by deaurider, Barry Abrahamsen, and the Online
        Distributed Proofreading Team at http://www.pgdp.net (This
        file was produced from images generously made available
        by The Internet Archive)


*** START OF THE PROJECT GUTENBERG EBOOK PENAL METHODS OF THE MIDDLE AGES: CRIMINALS, WITCHES, LUNATICS ***




Produced by deaurider, Barry Abrahamsen, and the Online
Distributed Proofreading Team at http://www.pgdp.net (This
file was produced from images generously made available
by The Internet Archive)









                          PENAL METHODS OF THE
                              MIDDLE AGES




------------------------------------------------------------------------




                          PENAL METHODS OF THE
                              MIDDLE AGES


                      CRIMINALS, WITCHES, LUNATICS



                                   BY
                           GEORGE IVES, M.A.




                    PRINTED FOR PRIVATE CIRCULATION
                                  1910




------------------------------------------------------------------------




                                CONTENTS


                               CHAPTER I

                                                         PAGE
          PENAL METHODS OF THE MIDDLE AGES                  1

                               CHAPTER II

          THE WITCH TRIALS                                107

                              CHAPTER III

          TREATMENT OF THE INSANE                         142

                               FOOTNOTES

          FOR ALL CHAPTERS                                179


------------------------------------------------------------------------




                               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.

According to Bracton an offender might be broken on the wheel for
treason, a crime so great that it was scarcely to be permitted that the
relations should live.[112] For the “common” criminal there was
hanging,[113] and the ghastly mutilations enjoined by the Norman kings
were continued; indeed they were made more savage for many offences
after 1176.[114] Up to the reign of Henry III. the penalty for poaching
in the king’s forests was death or the loss of eyesight.[115] Rape up to
the reign of Edward I. might also involve loss of eyes and
emasculation.[116]

Stealing from a dwelling appears to have met with the same barbarous
punishment. A glimpse of the gentle ways of twelfth-century “justice” is
revealed in an account of a supposed miracle. A certain Ailward, being
accused of housebreaking (committed apparently under considerable
provocation to recover a debt), was lodged for some time in Bedford
Prison.[117] After having failed in the water ordeal and being
convicted, he was taken out to the usual place of punishment, where his
eyes were blinded, he was mutilated, and the parts were buried in the
ground. He is said to have been restored through St. Thomas of
Canterbury.

By the time of Edward I. we begin to arrive at sentences of
imprisonment, and read of such penalties as one year and then a fine, or
two years in default of fine, in the first Statutes of Westminster. For
such offences as carrying off a nun, allowing a prisoner to evade
prison, or stealing tame beasts out of parks, a sentence of three years
might be awarded besides the customary fine. As we have seen, the
profits of “justice” were highly regarded; the fines were precious
perquisites of the Crown (and sometimes of subordinate administrators
and officials as well). The prisons were used as “squeezers” to extort
them. “Imprisonment,” say Pollock and Maitland,[118] “was, as a general
rule, but preparatory to a fine. After a year or two the wrongdoer might
make fine; if he had no money he was detained for a while longer. In the
thirteenth century the king’s justices wield a wide ‘common law’ power
of ordering that an offender be kept in custody. They have an equally
wide power of discharging him upon his making a fine with the king.”

In Henry III.’s reign “The wrongdoer but rarely goes to prison, even for
a moment.[119] On the plea roll the _custodiatur_ which sends him to
gaol is followed at once by ‘Finem fecit per unam markam’ (or whatever
the sum might be), and then come the names of those who are pledges for
the payment. The justices do not wish to keep him in prison; they wish
to make him pay money.” The authors just quoted say that the fines were
generally light, and give several instances[120]—it doubtless depended
much upon the judges and the reign. But wherever there are enclosing
walls, there are certain to be abuses behind them.[121] Judicial and
administrative scandals kept on occurring.[122]

In the fourteenth century many persons are said to have perished of
hunger and thirst,[123] and many died in prison about the time of the
Black Death (1349).[124] Into the fifteenth century the complaints
continue; we read the following in the _Liber Albus_:[125] “Whereas
great outcry has been made heretofore as to many wrongs and misprisons
done by the gaolers of Newgate and Ludgate and their officers and
servants, ...” and new regulations were made (and no doubt broken, as
the others had been) respecting fees the prisoners should pay.

The sixteenth century showed no advance in the matter of humanity.[126]
Torture, which, legally or illegally, has always been a ready trick of
statesmen, developed after 1468,[127] and under the Tudor sovereigns the
rack was ever creaking to extort confessions. The “common” criminals
were treated with the utmost severity; in 1530 an Act was passed by
which all poisoners were to be boiled alive.[128] Burning was the
penalty appointed for heresy, high and petty treason[129] (_i.e._ murder
of a husband by a wife, murder of a master or mistress by a
servant,[130] and several offences against the coin), and, unlike the
punishment of boiling, continued legal until 1790.[131] The right hand
might be taken off before hanging for aggravated murder, or a man might
be hung in chains and left to perish.[132] There was the drawing and
quartering in some executions, and ordinary hangings were exceedingly
numerous.[133] Men lost their hands for exporting sheep and for
libel,[134] and there was branding, etc., for perjury, and sometimes for
persistent vagrancy.[135]

A picture of the prisons has been left us in a work of 1545. “I see,”
observes the monk whose complaint[136] is given, “also a pytyful abuse
for presoners. O Lord God, their lodging is to bad for hoggys, and as
for their meat it is euil enough for doggys, and yet, the Lord knoweth,
thei haue not enough thereof. Consyder, all ye that be kyngs and lordys
of presons, that inasmoch as ye shut up any man from his meate, ye be
bound to giue him sufficyant fode for a man and not for a dogge.” He
further declares that the charges were greater than any at the “dearest
inn in Ingland,” and says that men lay six and seven years in prison
before the oncoming of their case.

About the year 1552 the City authorities selected what had been a palace
at Bridewell[137] (given by Edward VI.) for (among other purposes)
locking up, employing, and (as heretofore, according to Holinshed)
whipping beggars, prostitutes, and night-walkers of all sorts.[138]
Later on similar detention places were also called Bridewells, after the
first one at Blackfriars just alluded to. In 1597 they planned Houses of
Correction,[139] and in 1609 it was ordered that they should be builded
in every county.[140] Though they became, in practice, one with the
common gaols, they lasted at least in name till 1865.[141] But to resume
our survey of ordinary prisons. The seventeenth century affords the
usual evidence of what walls can hide. The gaolers, as of old, appear to
have been all powerful;[142] sometimes friendly, often the reverse,
always extortionate. John Bunyan, during his twelve years’
incarceration, was allowed to work for his family—for a large part of
the time in tolerable surroundings; but while in the Gate House prison
he was charged huge fees.[143] The prisoners hung collecting bags out of
their windows on Sunday mornings.

George Fox,[144] the Quaker, agreed with the keeper and his wife for
meat and drink, chamber, and other accommodation at a certain rate. But
he refers to one of their party being put “down in the Doomesdale[145]
amongst the felons,” and this, it appears, was a “noysome, filthy,
stinking hole, where was a puddle of ... and filth over their shoes and
the ... of the felons, and straw almost broken to chaffe with their long
lying thereon and full of vermin, wherein is neither chimney nor easing
house.” Confirmatory evidence as to how felons fared in 1667 may be
deduced out of a Statute of Charles II.[146] “Whereas,” it says, “there
is not yet any sufficient provision made for the relief and setting to
work of poor and needy persons committed to the common gaol for felony
and other misdemeanours, who many times perish before their trial, and
the poor there living idly and unemployed become debauched and come
forth instructed in the practice of thievery and lewdness,” etc.

The excellent plan was proposed that the profits of the prisoners’
labour should be placed to their relief. But to find useful labour
within prison walls has always been a most difficult problem, and the
world outside was always far too busy to see to it. The prisons of the
eighteenth century were very much like those that had been before, but
perhaps we know more about them through the great work of John Howard,
_The State of the Prisons_. It is a matter of history how that grim,
conscientious Puritan went where the ruling classes neither cared nor
dared to venture.[147] For, besides the dreadful stench which stuck to
his notes and garments, deep in the windowless (window tax), airless
rooms and dungeons through which he went, down in the stale, cramped
yards[148]—when there were any—without space or sun, and in which even
the supply of water was mostly beyond the bounds and so
inaccessible,[149] rising amidst the putrefaction of those places, there
lurked the dreaded typhus or gaol fever.

It had always been about since prisons were used, and sometimes proved
the Nemesis of neglect.[150] In 1522, at the assize in the castle at
Cambridge,[151] many of the knights and gentlemen attending caught the
infection from the “sauor of the prisoners or the filthe of the house.”
Writing of the year 1577, we read in _Baker’s Chronicle_:[152] “About
this time when the judges sate at the Assize in Oxford, and one Rowland
Jenks, a bookseller, was questioned for speaking opprobrious words
against the queen, suddenly they were surprised with a pestilent savour,
whether rising from the noisome smell of the prisoners or from the damp
of the ground is uncertain; but all that were present, almost every one,
within forty hours died.” Much the same happened at Exeter in 1586[153]
and at Taunton in 1730, and some hundreds perished at both these places.

Thomas Allen, in his _History of London_,[154] relates that in 1750 “The
Lord Mayor, some of the aldermen, two of the judges, the under sheriff,
many lawyers, and a number of lookers-on, died of the gaol distemper.”
The prison was afterwards cleansed! Howard asserts that in 1773–4 more
people died from the gaol fever than were executed in the kingdom;[155]
we lost 2000 sailors (criminals were often given the choice between
punishment and the services) with the fleet in the war with
America.[156] He quotes Lord Bacon as saying that the most pernicious
infection next to the plague is the smell of the jail.[157] Such were
the mephitic dens into which were cast men, women, and children of all
sorts; and there they would rot away or survive, as the case might be,
until the expiration of their (generally short) sentences of
imprisonment, if they could pay the fees charged on their coming out; or
until they ultimately came up for trial, after which they would either
be acquitted and discharged (again when they paid the fees), or they
would be convicted and transported or executed.[158]

The number of capital offences was truly enormous. Onward from 1688 they
steadily increased,[159] owing, as has been well remarked, to the
“unhappy facility afforded to legislation by Parliamentary
government.”[160] Members who could not become ministers, and who yet
wanted to do something, often had interest enough to hang somebody, or
at least to get a law passed creating a new capital felony.[161]

Thus through the ambitions of private members and the general
callousness of the ruling class, the number of capital offences kept
ever growing, until, in theory, there were more than two hundred of
them.[162] The law, however, had overreached; rough and often most
brutal as the people of that day were, they would not enforce the
penalties provided,[163] so that the hangman’s ministrations were
invoked for only twenty-five classes of offences in London,[164] and for
not more than thirty throughout England.[165] In fact, it was found that
conscientious people refused to prosecute for the lesser crimes,
dreading to have a share in taking life. But actually the gallows load
was heavy; an instance appeared in a _Times_[166] paragraph—18th January
1801—which tells how a certain Andrew Branning, a luckless urchin aged
only thirteen, had broken into a house and carried off a spoon. Others
were with him, but they ran away, and only he was captured and brought
to trial. His story ended in two words, which were short and customary:
Guilty—Death. Thus transportation and the extreme penalty kept clearing
the prisons, but those within them were the while exploited, being
entirely the prey and property of warders, keepers, and assistant
gaolers, all of whom made the most of their positions—which might be
given out like pensions or be purchased[167]—to wring out fees[168] and
make their places pay;[169] and having what amounted to unlimited power,
and being, by the nature of their office, used and inured to witnessing
suffering, the gaolers,[170] from the beginning and right into the
eighteenth century, shrank from no means, however mediæval, by which
they could extract their fees and charges.[171] Thumbscrews and iron
skull-caps were sometimes used,[172] and were produced in court as
evidence.[173]

Prisoners might be loaded with heavy irons unless they would pay to be
allowed lighter ones.[174] They were liable to be flogged with ropes or
whips or anything that came handy,[175] the common instrument of
flagellation, however, being the formidable _membrum tauri_.[176] They
might be kept in damp dungeons and darkness; the living were sometimes
locked up with the dead. They could be set apart and purposely exposed
to utter starvation,[177] gaol fever, and small-pox, or actually done to
death by their keepers’ violence.[178]

The prisoners were robbed for room, squeezed for food,[179] and dealt
with for drink of all kinds, spirits, and tobacco, in which the
officials did a roaring trade.[180] Lastly, the new arrivals at a prison
were fleeced and pillaged by their fellow gaol-birds for “chummage” or
“garnish” money,[181] and failing this, they were frequently stripped of
their very clothing, a process termed “letting the black dog walk.”[182]

And in all these vile places there was generally no production of
anything. The prisons and Bridewells were supposed originally to set
rogues to work,[183] but the authorities took no trouble to organise it,
and throughout the detention-places useful employment (if we except
occasional work done for the gaoler, or permitted in particular
instances) was impossible. It was found in 1818,[184] that, out of the
518 prisons in the United Kingdom, in 445 there was no employment, and
that in the remaining 73 it was of the slightest possible description.
Such were the bad old prisons of the past. Their faults were many,
glaring, and obvious, but they had yet a human side, too, and a better
one. Though the idiot might be laughed at and the new-comer despoiled,
though the keepers might be brutal and the atmosphere poisonous, still
in the midst of evil there would be individual acts of kindness and
self-sacrifice. If the captives were in chains and rags,[185] they were
not cut off from the outside world or striped and spotted in a livery of
shame.[186] If gaols were hotbeds of infection and cesspools of
corruption,[187] at least they were not the ghastly whited sepulchres
which were built in the nineteenth century.


                     MITIGATIONS AND PECULIARITIES

So far we have endeavoured to trace the course of the usual punishments
inflicted in various ages on the “common” criminals when they were
brought up charged with the graver crimes. There were, however, ways of
escape open, which are sufficiently general and important to be dealt
with separately.

_The Ordeals._—The invocation of miraculous guidance, to determine the
guilt or innocence of a person accused, has been resorted to from time
immemorial by all manner of methods throughout the four continents.

There were many ordeals in mediæval England. There was the corsned, or
consecrated barleycake, which was supposed to choke a perjurer if he
tried to swallow it; when mouth and throat were dry from fear or
excitement this was quite possible. There was a test by immersion, in
which the accused had to sink two ells deep—over seven feet. A rope was
attached round the body, and it is interesting to notice that Archbishop
Hincmar (ninth century) gave express directions for the rescuing of
those who, by thus sinking, were declared to be innocent.[188] There was
a test tried with hot water, in which a stone had to be picked up out of
boiling liquid without the arm being scalded. There was a test, to pass
which the hand had to be inserted into a glove of hot iron without being
burned by it. There was a test in which the suspected person must walk
through flames without being scorched. There was a test which consisted
in having to walk over nine red-hot ploughshares, blindfolded and
unseared.[189]

Perhaps, however, the best-known ordeal was that which was worked out
with a heated iron bar or ring.[190] This generally weighed three
pounds, and had to be carried—they were always personal and picturesque
in the middle ages—for a distance of nine times the length of the
bearer’s foot.[191] His hand was then bound up and left alone for three
days.[192] At the end of these it was examined, and if found clean and
free from suppuration[193] the accused was acquitted.

Doubtless, in deeply superstitious times the ordeals, with their solemn
prayers and incantations, were fairly effective. But yet they do not
seem to have been altogether trusted, at any rate in the later
period,[194] since even those who passed successfully through them were
obliged to quit the country within forty days.[195] Most people,
however, who underwent ordeals had been arraigned by twelve knights of
the county (who thus resembled a Grand Jury) and were already under
grave suspicion;[196] the ordeal, then, could only say not proven.
Moreover, it would appear from various sources that the tests and trials
were frequently tampered with,[197] the elaborate ritual giving plenty
of opportunity;[198] at least one king scoffed at priestly
acquittals.[199]

After incurring the disapproval of many Popes, the ordeals were
condemned at the fourth Council of Lateran in 1215, and by the
eighteenth canon priests were forbidden to pronounce their blessing upon
them.[200] The ordeals were abolished in England in the reign of Henry
III. and the juries took their place.[201]

Another species of ordeal, and certainly another means of escape from
the criminal law, was the wager of battle. This very ancient mode of
trial[202] was introduced into England by the Normans under William I.
If a man made a charge against another, and proofs of guilt were not
obvious and overwhelming, the latter could demand trial by battle,[203]
unless the complainant were over sixty years old or were sick and
infirm,[204] or laboured under some physical disability,[205] in which
case he might choose the ordeal.[206] Priests, infirm persons, and women
might have champions to represent them.[207] The knights fought with
their usual weapons,[208] the plebeians with staves forty-five inches
long, which were tipped with iron heads shaped like rams’ horns.[209]
They were to be bareheaded, barefooted, and close-shaven; and so they
fought till death or surrender,[210] at first with the clubs, and
afterwards, failing them, in hideous grapple, killing as best they
could. If the accuser were defeated he could be committed to gaol as a
calumniator,[211] but was not to lose life or limb; he was, however,
fined sixty shillings and lost civil rights.[212]

If the person who was accused—were he knight or peasant—yielded, he was
then forthwith hanged or beheaded as being guilty.[213] If, however, he
prevailed in the combat or defended himself till the stars came
out,[214] he might leave the field as being acquitted,[215] unless,
perchance, the justices desired to put him on trial for something else,
which they occasionally did.

The custom of trial by battle, along with all other kinds of
ordeals,[216] dropped out of practical usage during the thirteenth
century,[217] but continued the law for five hundred years afterwards.
In 1818 it was recalled into action.[218] One Abraham Thornton was
strongly suspected of having outraged and murdered a girl, Mary Ashford.
Although he was acquitted when tried by a jury, he was immediately
accused by her brother and heir-at-law, and claimed to defend by the
wager of battle. The fight was refused by the plaintiff, and shortly
afterwards there was passed “An Act to abolish Appeals of Murder,
Treason, Felony, or other Offences ... and Wager of Battel,”[219] so it
could not be claimed again.

Another haven of refuge from the clutches of the State was found within
the pale of SANCTUARY. Although, like prayer or sacrifice,[220] existing
round the globe from the beginning, we may confine ourselves to
Christian shelters, as they alone affected our laws.

The early Church doubtless afforded refuge as soon as it possessed the
power to do so, and gave asylum from the reign of Constantine.[221] Laws
were made on the right of refuge by Theodosius in 392,[222] boundaries
of sanctuary were extended by Theodosius junior in the fifth
century,[223] while many kinds of offenders were debarred from it under
Justinian (483–565).[224]

The saving power of sanctuary[225] would seem to have been but feeble
and tentative in the earlier period, since debtors to the State, Jewish
converts who were debtors, heretics and apostates, the slaves of
orthodox masters (the slaves of heretics and heathens obtained their
freedom[226]), and persons guilty of the more serious offences, were
refused privilege.[227]

But the protection of the mighty Roman Church was to be something more
than a mere respite for the lesser grades of offenders. In the year 511
a Council of Orleans[228] ordered that criminals who sought refuge in a
church or house of a bishop should not be dragged forth from it. Even
the slave given up to his master was not to be hurt by him. About a
century later Pope Boniface V. (619–625)[229] commanded that none who
had taken refuge should be abandoned. The same spirit is found in the
_Decretum Gratiani_ compiled in 1151. Pope Innocent III., in a letter
written in 1200,[230] ordered that only night robbers, bandits, and
persons doing violence within the church should be given up.[231] And
this we find reaffirmed by Gregory IX. in the year 1234.[232] In 1261
Boniface, Archbishop of Canterbury, in his Constitutions[233] expressly
forbade that any obstacle should be placed in the way of food being
brought to such as were in a sanctuary—so much had the Church increased
in power since Alfred’s time—and that any should be molested who, having
taken it, had forsworn the country.[234]

The exiles to whom this thirteenth-century archbishop alludes were
persons who had fled into churches, where they could then claim refuge
for forty days.[235] The buildings were watched that no one should
escape, and if a man got away the parish was fined. At the end of this
period the refugees must surrender,[236] but they might make an oath
before the coroner admitting their guilt, and also promising to quit the
realm. A road and port of destination were then assigned them,[237] and
they might travel thither “with a wooden cross in their hands,
barefooted, ungirded, and bareheaded, in their coats only.[238] And,”
said the king, “we forbid any one under peril of life and limb to kill
them so long as they are on their road pursuing their journey.”[239] But
they would forfeit goods and chattels if they had any.[240]

Under the masterful tyranny of Henry VIII. it was held that too many
British subjects escaped this wise, and it was enacted in 1530[241] that
those who had taken sanctuary should not leave the realm, but should be
sent to one of the privileged places (if it were not full, which at that
time meant if it contained not more than twenty people), there to remain
as sanctuary persons for the rest of their lives; and they were also to
be branded on the thumb.[242]

The great sanctuaries comprised Westminster Abbey, and at least thirty
other celebrated monasteries,[243] amongst which were St.
Martin-le-Grand, Beverley, Hexham, Durham, and Beaulieu, which possessed
special charters and immunities.[244] Though traitors, Jews, infidels,
and those guilty of sacrilege were not to be received, and though even
the peace of a minster might, in the strifes of State, be broken through
as in 1398, or evaded as in 1483, yet those within were generally safe
from all men. A follower of Jack Cade[245] was protected against the
king, and even one of the murderers[246] of the little princes in the
Tower found refuge in St. Martin’s Sanctuary.[247]

There were whole colonies of these fugitives round the great abbeys
already mentioned. “The right of asylum,” says Dean Stanley,[248]
“rendered the whole precinct a vast Cave of Adullam for all the
distressed and discontented in the metropolis who desired, according to
the phrase of the time, to take Westminster.” But the power of the State
increased more and more, and the dominion of the Church was sapped
away.[249] In 1483 King Henry VII. obtained a Bull from Innocent VIII.
which allowed malefactors to be taken from the sanctuaries if it were
proved that they had sallied out from them to commit crimes. In 1504 he
procured a Bull allowing him to take out persons suspected of treason.
In 1534 King Henry VIII. said that lese-majesty was treason, and
deprived those guilty of privilege.[250] In 1535 sanctuary persons were
forbidden to carry weapons or to go out between sunset and sunrise.[251]
In 1540 many sanctuaries were extinguished, and several offences, such
as wilful murder, rape, burglary, and arson, were excluded from
privilege.[252]

The sanctuary at the Abbey was broken up in 1566,[253] and doubtless all
the others came to a sudden end upon the dissolution of the monasteries.
In 1604 the old rules and laws about sanctuaries were repealed.[254] In
the year 1623 all rights of refuge were taken away.[255] The idea
lingered in the popular imagination, however, and in 1697 it had to be
pointed out by statute that arrests for debt could be made in “pretended
privileged places.”[256] These districts (such as the Mint, Suffolk
Place, etc.) were alluded to again in 1722,[257] and likewise in
1724[258] as regards Wapping, Stepney, in Middlesex—more than a century
after legal abolition.

Yet another way was open to people of good position or repute by which
they could extricate themselves from the ordinary course of law[259]
(but not against the suit of the king, and there were also other
limitations), and that was by means of formal COMPURGATION. We have seen
that in Teutonic communities the oath of a slave had no legal value,
while the oath of a thane was worth those of six labourers. Thus kings
and bishops might sometimes rebut accusations by means of their word
alone.[260] The Visigoths allowed an accused person (of credit) to reply
in this manner,[261] but the practice was condemned by the Church as
inciting to perjury.[262]

The usual course[263] was for the accused to obtain eleven or twelve
compurgators[264]—relations, neighbours, or fellow-craftsmen who would
swear with him to the justice of his cause.[265] Perjury was indeed
often suspected in these compurgations, and if a man of bad character
got his co-witnesses[266] (and if he could not he was generally sent to
the ordeal) he was frequently banished in spite of their testimony.[267]

In the beginning of the thirteenth century Pope Innocent III. modified
the oath,[268] and afterwards witnesses swore only to character, to
their belief in the accused’s credibility. Compurgation appealed
especially to the clergy,[269] and was even called the _Purgatio
Canonica_.[270] Cut off by their calling from all lay connections, they
could rely the more upon their own brethren. It was by solemnly swearing
with twelve priests as compurgators that Pope Leo III. elected to clear
himself from certain accusations, in the presence of Charlemagne (in
A.D. 800);[271] and in 803 that emperor ordered priests to defend
themselves by taking an oath with three, five, or seven compurgators.
The practice began to decline towards the close of the twelfth
century,[272] but still lingered on into the sixteenth century in
England, and in isolated cases to later times. The Wager of Law was not
formally repealed till 1833.[273]


                         THE RULE OF THE CHURCH

The Christians had always been an exclusive body of people, at first
from fear, and afterwards from fanaticism. They excommunicated all
offending members, thus not only cutting them off from fellowship, but
also depriving them of those rites which in their creed were necessary
for salvation. This custom of excluding from communion was from the
first a formidable spiritual weapon among believers; what it became when
the Christians could also wield the sword of temporal power we shall see
in the course of time. In the early days they were a world within the
world—vehement in convictions, stimulated by persecutions, and extremely
well organised.

Their bishops arbitrated and ruled in ecclesiastical matters,[274] and
also in civil suits between individuals who were unwilling to go to law
before unbelievers, and doubtless they sat in judgment on their own
followers before the advent of the regular Ecclesiastical Courts of
subsequent ages.[275] From the Apostolic times they had resented resort
to external tribunals,[276] and, in a series of Councils,[277] the
Church had forbidden appeal to the civil powers against the decisions of
Christian Courts; by the eighty-seventh Canon of the Fourth Council of
Carthage (A.D. 398) no Catholic was to bring any cause, whether just or
unjust, before an heretical judge.

The time came when the State accepted Christianity, and when that
religion influenced the laws.[278] Under Constantine the civil officers
were obliged to carry out the decrees of the Christian bishops, who
exercised a wide jurisdiction. In 376 their Courts were given the same
status as belonged to those of the imperial magistrates.[279] From the
beginning, and under the Theodosian and Justinian Codes, the bishops
possessed great disciplinary powers; and after the death of Charlemagne,
in the midst of a period of violence and disruption, the Ecclesiastical
Courts were firmly established and gained in power as the centuries went
by.[280] They had their own rules and codes to determine cases,[281] and
came to adjudicate upon many things which do not concern us, such as
tithes, breaches of covenant, births, marriages, and wills.[282]

It used to be a custom in ancient times for the bishop to go journeying
through his diocese. As he entered each parish he would be met by the
inhabitants, from amongst whom he would select seven men of mature age
and strait character,[287] who were then sworn on holy relics to relate
all they knew, or possibly imagined, about their neighbours and their
shortcomings. The bishop or his archdeacon[288] would then investigate
and summon suspected persons before them for examination and
sentence.[289]

It would appear that these inquisitions with the _Testes Synodales_
could be extremely punitive when undertaken by a vigilant and censorious
Christian moralist. We find that an energetic Bishop of Lincoln so
harried his diocese,[290] and with amazing and minutely personal
examinations[291] unearthed so many scandals among all ranks of the
people,[292] that he was checked by Henry III.[293]

Although the nations and the laws of Europe ceased to be pagan, and
became Christianised, the Church, with its haughty claims and
well-learned rulers, sought for autonomy. Had not the Apostle Paul said
that they should judge angels,[294] and that the saints some day should
judge, the world?[295] After such a text it was easy to claim that the
Emperor Constantine had declared at the great Council of Nicaea[296] (in
A.D. 325) that priests could be judged by God, but not by men. The
clergy wanted to be tried by their peers, and looked askance at the
other Courts; the times were given over to violence, the punishments
were always sanguinary, and the lay lords and judges were exceedingly
rapacious.[297] If there were no more open pagans in high places, there
came along various heretics certain to be abhorred at least equally.

So the Church started on a long contention, in which there were many
struggles, with local victories and defeats in different countries. In
the earlier period the State was the stronger; a law of Gratian[298]
(fourth century) reserved to the Secular Court all but the slight
offences of the clergy. It was laid down at the Council of Agde in
506,[299] and again at the Council of Epaone in 517,[300] that while the
clergy should not appeal to the civil power as plaintiffs,[301] they
were to attend if summoned to the Secular Courts. At a Council of Macon
in 581[302] it is implied that criminal cases were to be conceded to
them. At the same time the clergy were forbidden to accuse one another
before civil magistrates.[303]

The fear and jealousy of the Secular Courts persisted; by a Canon of the
Third Council of Orleans (A.D. 538),[304] the bishop’s permission was to
be given before a cleric could attend as plaintiff or defendant. By the
fourth Canon of the Fifth Council of Paris (A.D. 615),[305] no judge was
to try any ecclesiastic without first giving notice to his ordinary;
this order is repeated in a Capitulary of Charlemagne of A.D. 769. Pope
Gregory the Great (540–604)[306] had contended for the principle that a
clerical defendant was entitled to be tried by his own Court, and this
was established by Welsh Canons of the seventh century.[307]

A Capitulary of Charlemagne gave the bishops criminal jurisdiction over
the clergy,[308] though the emperor reserved to himself the right of
final decision in all cases.[309] By the year 853 his grandson, the
superstitious Charles the Bald, was appealing to the bishops at Soissons
against the person of a humble clerk who was accused of forging the
royal signature.[310] In A.D. 866[311] Pope Nicholas I., in his advice
to the Bulgarians, declared that laymen had no right to scrutinise or
condemn any priests, who were to be left to the control of their
prelates. The Council of Ravenna in 877[312] ordered that none who were
under the bishops’ guardianship should be seized by the seculars.

The two systems drifted farther and farther apart;[313] clerks were
forbidden under pains and penalties to attend secular summonses. The
Emperor Frederic II.[314] decreed in 1220 that no one might drag a clerk
before a secular tribunal; any lay judge who convicted one was to
forfeit his place, besides incurring spiritual penalties.[315] The
Emperor Charles IV. made similar laws in 1359 (_Constit. Caroli IV._ 5),
and punished the imprisonment of a clerk with outlawry and loss of
possessions.[316] This was confirmed by Pope Martin V. in 1418. The
right to clerical immunity[317] was reasserted at the twenty-fifth
session (20) of the General Council of Trent in 1563.[318]

The Church, as we have already seen, had been allowed and appointed to
regulate the faith and morals of all men. It also claimed, and, in the
long-run, secured, the right to demand all clerics accused of
crimes,[319] except in cases of high treason, highway marauding,[320]
and deliberate house burning,[321] offences against the laws of the
forest (that is hunting the king’s deer, etc.),[322] and misdemeanours
(_i.e._ slight offences).[323] In time all clerks claimed privilege of
clergy, and these consisted not only of those in priests’ orders[324]
(of minor orders there were four degrees below subdeacons[325]), but of
all those who were tonsured and had their hair cut in the clerical
fashion.[326]

All anywise connected with Church work, such as the readers, acolytes,
and door-keepers, could claim clergy.[327] So that the state of
clerkship was frequently claimed,[328] both justly and fraudulently, by
extremely humble people, and the existence of the tonsure, and also its
genuineness, were very important in criminal cases, for it was sometimes
assumed as a claim to immunity,[329] and occasionally the accused would
have their heads shaved by the prosecutors in order to obliterate
it.[330]

By the statute _Pro Clero_ of 1350,[331] “all manner of clerks, as well
secular as religious, which shall be from henceforth convicted before
the secular justices aforesaid for any treasons or felonies touching
other persons than the King himself or his royal majesty, shall from
henceforth freely have and enjoy the privilege of Holy Church, and shall
be, without any impeachment or delay, delivered to the ordinaries
demanding them.” This came to mean immunity for all who could read.[332]

A man who claimed clergy was examined as to his scholarship, being
required to read a passage,[333] usually from the 51st Psalm, which was
called his “neck verse.”[334] Then said the lay Court to the bishop’s
representative, “Legit ut clericus?” and the examiner replied, “Legit,”
or “Non legit”;[335] and the person would either be remitted to the
ordinary or sentenced by the judge, although it was forbidden to teach
an accused person his letters[336] while he awaited trial (and he might
have to lie five or six years in the bishop’s prison until he could be
presented at the assizes—Pollock and Maitland, _Hist. Eng. Law_, p.
442); yet foreigners might read from books in their own language,[337]
and the blind could claim clerkship if they could speak in the Latin
tongue.

Clearly, to be tried by the Ecclesiastical Courts was looked upon as
being a privilege and an advantage by the person accused.[338] He had
every chance of acquitting himself[339] by means of the Canonical
Purgation (see Compurgation, _ante_);[340] and even if he happened to be
condemned by bishop or abbot,[341] in case he failed to obtain the
necessary compurgators, or were delivered over _absque purgatione_
(_i.e._ not allowed to make his purgation),[342] or even if, from
religious fears, he refused to swear innocence,[343] the ecclesiastical
punishments were generally merciful, except for such deadly sins as
heresy or witchcraft.

The clergy were forbidden by the Canons to impose sentences of death or
mutilation;[344] the injunction was repeated by Archbishop
Ecgberht.[345] “We threaten anathema,” wrote Archbishop Richard in the
year 1175,[346] “to that priest who takes the office of sheriff or
reeve.” Again in 1215 were the clergy forbidden the judgment of
blood.[347] They were not, said a Council of Toledo,[348] to sit as
judges, even at the command of a ruler, in cases of treason, unless he
first promised to remit the red penalties. At the Council of
Auxerre[349] the clergy were prohibited from witnessing the usual
torturing, of the prisoners, or from lingering round the trepalium when
it was in progress. In fact, except for acts or thoughts which it
considered to be high crimes against the soul, the Church was milder
than the mediæval State.

The Church being debarred from the employment of the swift and
sanguinary penalties of those times, had to resort to other methods of
disapproval, and it evolved the penitential discipline. At first it
wielded only spiritual weapons—none the less terrible in those days
because they were ghostly—and by refusing access to Church or Communion,
and thereby (as all concerned fully believed) closing on kings the
everlasting doors, it sometimes brought the mightiest to their knees to
implore pardon from the priests of God.[350] On confessing a crime, or
upon being condemned, all manner of tasks and toils were laid upon the
penitent. Sometimes they were capricious and poetic; thus if a man had
slain his near kindred,[351] the weapon with which the deed was
committed could then be forged into a penal chain, and, bound therewith,
arrayed in the sclavinia,[352] or, it might be, naked, he would have to
trudge away, staff in hand, to his destination, which might be some
local shrine, or that of St. Thomas of Canterbury; but which might be
far off, across and beyond the seas, to Compostela, Rome, or
Palestine.[353] The ordinary penitent wore no chains, but he was usually
required to go unarmed, to eat no flesh, to take no strong drink, and to
abstain from warm baths, and sometimes he had to fulfil weird and
painful conditions particularly imposed by his penitentiary;[354] as,
for instance, when Robert, called the Devil, was ordered by a certain
hermit[355] to eat only bones and scraps which had been thrown to dogs,
and to be dumb and act like one insane. Our own King Edgar[356] was
condemned not to wear his crown for seven years. Examples could be
multiplied indefinitely. A much-employed form of correction consisted in
imposing penitential fasts,[357] during which the offender was to
subsist upon bread and water,[358] and was subject to many disabilities
and restrictions.[359] These sentences might be for any period ranging
from a single day to twenty years, and even longer, and all the while
the penitent was supposed to drag out his existence in shame and
disgrace, making prayers for deliverance.[360]

The Church allowed class distinctions in several ways;[361] offences
might be punished according to the rank of the aggrieved party, so that
the penance for the murder of a bishop was for twelve or fourteen years,
or longer, upon bread and water, while the slaying of a deacon could be
atoned for by seven or ten years’, and of a layman by four, five, or
seven years’ discipline.

On the other hand, people, and especially the clergy, were liable to be
sentenced more severely in proportion to their rank.[362] Thus for
homicide, where a layman would get four or five years’ penance from the
ordinary,[363] a clerk would receive six years, a priest ten, and a
bishop as much as twelve years (seven on bread and water).[364] These
long-enduring penances sound severe, and doubtless were for devout
believers. But the Roman Church, always a marvel of organisation,
allowed its bishops very great latitude, both in imposing and removing
penances. “I require not the continuance of time,” said Chrysostom, “but
the correction of the soul; demonstrate your contrition, demonstrate
your reformation, and all is done.” By the authority of the
Councils[365] they could increase or mitigate sentences,[366] so that
the infirm and the over-sensitive might have their tasks modified.[367]

But they dealt gently with the men of might;[368] the wind was tempered
to the woolly lamb.[369] In spite of Cuthbert’s Canons at Cloves-Hoo in
the eighth century,[370] the rich were generally enabled to perform
their pilgrimages vicariously (whereby there had arisen a class of
professional pilgrims; Thrupp, p. 239, etc.), and to atone for sins by
almsgiving and payment.[371] “Thou hast money, buy off thy sin,” Ambrose
had written in the fourth century.[372] “The Lord is not for sale, but
thou thyself art for sale. Restore thee by thy works. Buy thyself back
by thy money.”

This exhortation was followed and given the lowest possible
interpretation in the Canons made (by Dunstan, probably) in the reign of
King Edgar in the year 963.[373] When a great man had been condemned to
fast, say seven years, he was to lay aside his weapons, and take his
staff in his hand and walk barefoot, clad in wool or haircloth, and he
was not to go to bed or banquet for three days.

He was to take to his assistance twelve men, and they were to fast three
days on bread, raw herbs, and water: thus thirty-six fasts were kept. He
was to get together seven times 120 men and set them to fast three days;
thus he secured 7 × 120 × 3 + 36 fasts, or 2556, which meant as many
fasts as there were days in seven years, counting a leap year! And thus
his penance was done, or rather evaded.[374]

But the Church did not usually allow its penalties to be disregarded;
against heretics there were, even in England, severe statutes,[375] and
they would be seized by the civil forces and burned alive. Any one who
had offended against the Canons, and who refused to do penance, could be
excommunicated, and then he became liable to arrest.[376] In this
country if the offender ignored it for forty days,[377] the King’s
Court, on the request of the bishop,[378] issued a Writ of
Significavit,[379] or some similar injunction, ordering the sheriff to
imprison him until he had satisfied the claims of the Church.[380]

The hierarchy, although, as we have seen, debarred from directly
inflicting such penalties as death or amputation of members, resorted to
many forms of corporal punishment. Floggings for penance or discipline
were administered frequently;[381] the younger monks in the monasteries
commonly received thirty-nine stripes.[382]

But the bishops had other and worse penalties in reserve, and, unlike
the secular rulers, they employed imprisonment as a means of punishment
in itself. The Catholic Church, with its ideals of cloistral life and
ascetic seclusion, sought to produce remorse through mental affliction,
and in its high-walled abbeys and gloomy courts had buildings ready to
immure any one. The first cells were among the _exedrae_ round churches
and bishops’ houses and were called the _decanica_,[383] while
refractory monks were freely imprisoned in the great monasteries.[384]

Though the ecclesiastical punishments[385] were accounted generally
merciful—as we shall see presently from English comments on them—they
could be pitiless enough on occasions, especially against heretics. The
secret and dreadful Inquisition had its own prisons,[386] in which it
tortured its victims by every means that subtlety could suggest, and in
which the mind-wrecking results of solitary confinement were probably
first discovered, and at any rate utilised.

Already back in the thirteenth century the authorities had frowned on
prison association.[387] In 1229 a Council of Toulouse ordered that the
“converted” heretics (_i.e._ those who had recanted from the fear of
execution, and who were even then sentenced to imprisonment for life;
_vide_ Lea, on Laws of Frederic II., Bull of Gregory IX., etc., in his
_Middle Ages_, i. pp. 321, 484) should be kept from corrupting others.
The new prisons built for the Church and the Inquisition[388] were
ordered to have small dark dungeons for solitary confinement. In 1246 a
Council of Beziers[389] ordered that the captives should be kept
separate in secret cells, so that no one might corrupt another. It
speaks of the “enormis rigor carceris.”

The prisoners of the Church[390] were subjected to various kinds of
incarceration. There was the _Murus Largus_, under which they were
allowed about the place;[391] the _Murus Strictus_, _Durus_, or
_Arctus_, by which they were supposed to be confined in separate cells
upon bread and water;[392] and the _Murus Strictissimus_, where they
were kept in dungeons and in heavy irons.[393] The Inquisition employed,
besides, innumerable torments, and could learn little from the
imaginings of Dante; but that dread organisation has a history of its
own.

Apart from it, the bishops[394] possessed their prisons, and the great
convents had penal cells,[395] and these they would use to inflict
penance or punishment.[396] Thus at Canossa, in 1077, Pope Gregory
VII.[397] consigned the rebellious German prelates to solitary cells
with bread and water dietary.

Again we may read of another example occurring in the year 1283. A
certain Brother John had, it appears, bitten his prior’s finger “like a
dog,” it was said; and for this we find the bishop ordering the outraged
prior[398] “to keep the said Brother John in prison under iron chains,
in which he shall be content with bread, indifferent ale, pottage, and a
pittance of meat or fish (which on the sixth day he shall do without)
until he is penitent.” A worse fate befell Alexander de Langley in the
same century.[399] This unfortunate creature was a man of great culture
and was the keeper of the abbot’s seal. Either from approaching general
paralysis, or from some other form of insanity, he passed into a state
of extreme exaltation, perhaps to the extent of being, as they would
take it, mutinous or blasphemous. A severe flogging having failed to
restore his sense of proportion, he was consigned in fetters to a cell
in which he ultimately died, and was buried, the corpse still chained.

There had also existed within the monasteries the dreadful punishment of
solitary confinement known as _In Pace_. “Those subjected to it,” says
Dr. Lea,[400] “died in all the agonies of despair. In 1350 the
Archbishop of Toulouse appealed to King John to interfere for its
mitigation, and he issued an ordinance that the superior of the convent
should, twice a month, visit and console the prisoners, who, moreover,
should have the right, twice a month, to ask for the company of one of
the monks. Even this slender innovation incurred the bitterest
resistance of the Dominicans and Franciscans, who appealed to Pope
Clement VI., but in vain.”

There could indeed be abuses and cruelties in ecclesiastical prisons, as
there always are where high walls conceal. For instance, we may
read[401] that in A.D. 1283 certain monks were seized by the Abbot of
Westminster, “and so greatly beaten that one of them has miserably
expired.” There were cases where the Church took the extreme step of
degrading from orders. In the very early period this often meant that
degraded clerics would be immediately claimed by the secular authorities
and set servile tasks[402]—after which they could not be reinstated.
Very often they were shut up in the monasteries,[403] a course which the
bishops preferred to remitting them to lay punishment.[404] Innocent
III. (1198–1216), however, directed that clergy who had been degraded
should then be handed over to the secular powers.[405]

But in actual practice clerks were not often totally degraded.[406] To
be deprived of orders was looked upon as a terrible punishment;[407] it
was the final casting from the fold and was inflicted with great
difficulty.[408] Three bishops were required to degrade even a deacon;
six were necessary to unfrock a priest; and it took twelve prelates to
adjudicate upon a bishop.[409]

When any were degraded, excommunicated, and sent to the seculars, the
sanguinary lay penalties took their course.[410] The chief offence for
which the Church withdrew all protection was obstinate or repeated
heresy. In the earlier period those found guilty were branded on the
forehead[411] and cast out[412] (as once from Oxford, to die of cold and
starvation) excommunicate, or they might be imprisoned and have their
property confiscated.[413] But with the rise and multiplication of
militant sectaries, the Church urged the State to proceed to
extremities.

Heretics were ruthlessly burned alive by popular custom[414] (and were
sometimes “lynched” like negro criminals in the United States; _vide_
Lea, _Middle Ages_, i. pp. 219, 222, 308), and in time this became
formally recognised.[415] Pedro of Aragon in 1197, the Emperor Frederic
II. by the _Edict of Cremona_ in 1238, Louis IX. of France by his
_Établissements_ in 1270, and Henry IV.[416] of England in 1400, made
burning at the stake the legitimate punishment of persistent or relapsed
heretics.[417]

But it was not the severities of the Church that kept arousing the
jealousy and opposition of the secular power. It was the immunity it
afforded to those under its protection[419] which moved the State to
attack clerical privileges, and, in the course of ages, to remove them
entirely. In Saxon times lay and episcopal authorities acted closely
together, but William of Normandy, doubtless continuing the Continental
movement already alluded to, separated the ecclesiastical from the
secular courts.

King Henry II. had succeeded to the throne after a period of civil war
and devastating brigandage, in which the Church had fortified its
position and extended its jurisdiction,[420] and was bent upon
reasserting the power of the central government. He found that the
clergy and the clerks[421] were outside his control, and in the middle
ages they were a numerous body,[422] as many people were received into
orders who had little or nothing to do in their own profession, and who
were debarred by rule from obtaining a livelihood otherwise.[423] So the
king employed all his efforts to place the clerks under his justices.

A crucial case arose in 1163. A certain Philip de Broi or de Brois,[424]
who was probably an Archdeacon of Bedford and a Canon of Lincoln, had
previously escaped personal punishment on a charge of manslaughter, but
was afterwards denounced as a murderer by Simon FitzPeter, who was one
of the king’s justices. On this he protested vehemently and abused the
judge. There had been several other cases about that time, including a
bad one of murder and rape by a cleric from Worcester,[425] and another
of homicide out of Salisbury,[426] in which the offender escaped with
imprisonment, and King Henry took action with great fury.[427] He
claimed to have been insulted in the person of his delegate, and ordered
that de Broi should be brought to trial, not only for this, but for the
original manslaughter; he wished, in fact, to send him to the gallows.
But the archbishop refused to reopen the matter already tried and
decided, but for having insulted the king’s officer the rebellious
priest was severely dealt with,[428] as he was stripped and flogged
before the angry judge, and lost his office and stipend on being
banished for two years.[429] The king was dissatisfied, desiring nothing
less than the death of the canon, and vigorously proceeded towards the
subjugation of the clergy.

In 1164 he promulgated the _Constitutions of Clarendon_, by which he
desired that criminous clerks should incur the lay penalties. The
offender was first to be accused in the temporal court;[430] then tried,
convicted, and degraded by the ecclesiastical tribunal; thence sent back
for sentence to the secular court, to receive the customary draconic
punishments. But Archbishop Becket and the English hierarchy declared
that to degrade a clerk and then remit him to the secular judges was to
punish him twice for the same offence.[431] “Affliction,” they said,
quoting a Hebrew prophet,[432] “shall not rise up a second time.” All
they would concede was that if a clerk after being degraded[433]
committed the offence again he might be handed over as an ordinary
layman.[434]

The death of Archbishop Thomas stayed all Henry’s plans as regards the
Church. “The temporal courts maintained their claim to bring the
criminous clerk before them; they abandoned their claim to punish the
degraded clerk.”[435] In the thirteenth century it had become the custom
that the clerk[436] should first be indicted and inquired upon before he
could claim his clergy;[437] by the reign of Henry VI.—1422–1461—he must
first be convicted[438] before being passed into the hands of his
bishop.[439]

In 1261 Archbishop Boniface[440] ordered that the clerks in their
bishops’ custody for capital crimes should suffer perpetual
imprisonment. In 1275 Edward I. expressly ordered that the bishops were
to allow no clerks to depart without purgation.[441] In 1276,[442] the
_Bigami_, _i.e._ the persons who had been twice married or those who had
married widows[443] (highly respectable acts at the present time), were
excluded from claiming clergy.[444] In 1279 Archbishop Peckham decreed
in his _Constitutions_:[445] “Let not clerks that are in prison for
their crimes, and afterwards delivered to the Church as convicts, be
easily enlarged, or admitted to purgation upon too slight pretence, but
with all solemnity of law and with such provident deliberation that it
may not offend against the king’s majesty or any that have a regard to
equity.”

In 1350 there came the statute _Pro Clero_.[446] Many persons had, it
appears, been seized by the seculars. By this Act the Church’s
privileges were reaffirmed,[447] and the offending clerks were ordered
to be handed over to the spiritual courts. But for this grant the king
demanded that the clerical convicts should thenceforth be safely kept
and duly punished, “so that no clerk shall take courage to offend for
default of correction.” Thus urged by the Crown, and perhaps fearful of
other enactments, Simon Islip, Archbishop of Canterbury, endeavoured to
make things harder for the Church’s prisoners. “They are,” he complains,
“with so much backwardness and favour committed to gaol, and are so
deliciously fed there, that the prison intended for a punishment for
their crimes is turned into a refreshment and delicious solace, and they
are pampered in their vices by ease and such inducements and yet make
their escape out of custody as injurious to them.... And some
notoriously infamous criminals, that are in truth wholly without excuse,
are yet so easily admitted to their purgations, that every clerk thus
delivered (by the secular judge) hath sure hopes of returning to his
former evil life by one means or other.... Therefore we have thought fit
thus to ordain concerning the imprisoned clerks[448] ... (they are) to
be closely imprisoned with all proper care and expedition according to
the quality of their persons and the heinousness of their crimes, that
they may not to the scandal of the Church return to their former way of
life from an imprisonment intended for a punishment.” Clerks guilty of
bad offences are, on Wednesday, Friday, and Sabbath day, to have bread
and water; on the other days, bread and small beer; “but on the Lord’s
day, bread, beer, and pulse, for the honour and eminence of that day.
And let nothing else be given them by way of alms or gratuity from their
acquaintance and friends, or for any pretence or reason whatsoever; nor
let any purgation be granted them.” These severe rules, which, coming
from the archbishop,[449] were, of course, repeated by all the prelates,
resembled the penal systems of discipline which reached their maximum of
cruelty in the nineteenth century.

But there seems good reason to believe that the Church’s treatment of
its prisoners remained, on the whole, mild and humane. The clergy were
not hardened prison officials; their calling was spiritual rather than
military. They were dealing with men belonging more or less to their own
order, and were prone to class loyalty.[450]

In the light of subsequent criticism and legislation,[451] it seems that
even after Islip’s ordinance the Church’s convicts were much better
treated than were the laymen in the common gaols. Moreover, either (or
both) from a sense of humanity,[452] or because the bishops disliked
having to pay for the keep of their prisoners,[453] long sentences were
avoided and life sentences were inflicted as rarely as possible; the
prisoners would be pardoned[454] on jubilees and special occasions, and
sometimes released on their friends paying ransom (apparently of such
sums as £20 or £40; _vide_ Lea, _Studies in Church History_, p. 202, and
the statute 23 Hen. VIII. c. 1). The State all along appeared on the
side of severity, and, from the thirteenth century, was in the habit of
sending clerks to their bishop _absque purgatione_, who, in theory at
least, were to be life prisoners. Indeed, if the ordinary should attempt
to release such persons, he could be restrained from doing so by a writ
out of the Chancery.[455]

So early as 1238 a Bishop of Exeter[456] was in trouble for having sent
a certain clerk to purgation. Later on an Abbot of St. Albans[457] was
accused of allowing some prisoners to escape; and there are doubtless
other instances. But evidently the prisoners of the bishops were
continually being released, for we find a special statute[458] passed in
the year 1402 forbidding that clerks found guilty of treason (of less
degree than plotting against the king himself), or who were known to be
common thieves, should be allowed any sort of purgation. In 1485 an
Act[459] was passed by which the bishops might commit priests, clerks,
and religious men to ward and prison for advowtry (_i.e._ adultery),
fornication, incest, or any other fleshly incontinence, and they were
not to be liable for actions for wrongful imprisonment.

In 1487 a severe blow was aimed at immunity. By this Act,[460] clerks
(_i.e._ such as could read, but who were not actually within orders)
were to enjoy their privilege only once; and to ensure that they should
no longer be “continually admitted as oft as they did offend,” it was
ordained that clerks not within orders, who should hereafter be
convicted of murder, should be forthwith branded[461] by the gaoler in
open court with the letter M upon the brawn of the left thumb, and, if
found guilty of theft,[462] with the letter T, before being handed over
to the ordinary’s officer.

An ordained priest could appeal to his Church again, but if he should
claim his clergy a second (or other) time, he was to have his letters of
ordination ready at hand, though he might be allowed one day’s grace in
which to obtain them—or equivalent evidence from the nearest bishop—and
if they were not forthcoming he forfeited all clerical privileges.[463]
In 1496 lay persons who should murder their lord, master, or sovereign
immediate were deprived of their clergy; and in the fourth year of the
following reign more exceptions were made, and clergy was taken from
all, not actually within orders, who committed a felony in a church, or
upon the king’s highway, or who slew anybody in his own house.[464]

We have already seen with what exceeding difficulty a clerk, and more
especially a priest, could be degraded and cast out of orders. To remedy
this. Cardinal Wolsey, Archbishop of York, obtained a Bull[465] (as
regarded England) from Pope Clement VII. in 1528, by which a single
bishop, assisted by two abbots or other high dignitaries, could perform
the ceremony.[466]

The statute 23 Hen. VIII. c. 1 (1531) alludes to the monition of Edward
I. (1275), to the effect that no Church prisoners should depart without
strict purgation, on which Henry VIII. observes that, nevertheless, they
were released very easily. It cites the statute of Henry IV. (1402),
which ordered that notorious criminals should make no purgation, and
goes on to say that the ordinaries kept releasing offenders speedily and
hastily “for corruption and lucre,” or because the clergy will in no
wise consent to take charge of prisoners. The law then proceeds to take
away the benefit of clergy from the various petit treasons previously
referred to, and also for arson, from all clerks—subdeacons and the
grades above them still excepted. The clergy within orders were to have
lifelong imprisonment for these crimes,

By the fourth Canon at the thirteenth session of the Council of Trent in
1551, it was decreed that a bishop or his vicar-general could condemn,
and even degrade criminous clergy, with the assistance of as many mitred
abbots, or, in default of them, as many high ecclesiastics as there
would have been bishops under the old system. Lecourayer, i. p. 550;
Luzio, _Cath. Ency._ iv. p. 678.] unless they could find guarantees for
good conduct—the accused to the extent of £40, with two substantial
sureties in £20 apiece. By this statute it was also intended to relieve
the bishops of the burden of maintaining their prisoners, and they were
empowered to degrade such offending clerks, and to hand them over “in
sure and safe keeping into the King’s Bench,” with a certificate
certifying their degradation—now so much easier—upon which the king’s
judges were to pass such sentences (usually of death) as would have been
passed upon the convicted if, at the time of their accusation, they had
been laymen and not clerks of any kind.

Nor was this all, for in the same year (1531) an Act[467] was passed by
which escapes from the bishop’s prison were made felony for the clerks;
those within orders were to be sent back to their prison, to abide there
without release. In 1533[468] clergy was taken away from all who refused
to plead, or who challenged above twenty jurymen peremptorily. In
1536[469] clergymen within orders were to be placed on the same footing
with other clerks, but this law only lasted about a decade. But now the
immunity of the clergy began to be taken away by a long series of
statutes exempting particular crimes from any indulgence.[470]

In 1576 convicted clerks ceased to be handed over to the bishops to make
purgation.[471] For all “clergyable” felonies, Lords of Parliament[472]
(even when they could not read) and the clergy in orders were
immediately released. The rest who could read were discharged for a
first offence upon being branded, but the Court might also order their
detention in prison for not more than a year; the captives who could not
read were speedily hanged.[473]

As the privilege of clergy became less worth having it was extended: to
the _bigami_, or twice married, in 1547, and to women[474] (professed
nuns had always lived under the Church’s rule) in 1692. Upon conviction
they were to be treated in the same way as the men in similar cases,
that is, branded upon the hand, and then discharged, either at once or
after imprisonment not exceeding one year.

In 1699[475] it was ordered that the branding should be done upon the
face, but this cruel marking was found to prevent the victims from
obtaining employment and to render them desperate, and the law was
repealed six years afterwards in the reign of Anne.[476] In 1705 the
reading test was abandoned. The distinction had come to lie between
offences, not offenders,[477] and all were admitted to “clergy” who had
been convicted of any of these minor felonies which still remained
clergyable.[478] The Act of 1705 also provided that such convicts should
be liable to be sent to houses of correction or to public work-houses,
for periods of not less than six months or exceeding two years, at the
discretion of the magistrates.

In 1717[479] it was enacted that persons (other than peers or clerks in
orders) guilty of clergyable offences might be transported for seven
years[480] (the usual sentence was for fourteen), instead of being
branded or whipped.[481] In 1779[482] persons liable to be burned in the
hand might escape with a fine, or they might be whipped in public or
private, not more than three times; women were to be flogged in the
presence of females. By this Act the branding was abolished in practice;
and about half a century later all that remained of the old privilege
was done away with in the reign of George IV.[483]

It has been customary to condemn all these old rights for so many years
accorded to clerkship, because they are supposed to have constituted
infringements of the principle that all men should be equal before the
law.[484] But when we consider the barbarities they prevented, and after
we have examined and ascertained the aimlessness and inutility of mere
punishments, we may be forced to think that they were not an unmixed
evil, and that, perhaps, they rather made for good.


                    SUMMARY AND “POETIC” PUNISHMENTS

Since the poor human body has always been sensitive, so at the
promptings of the revenge instinct it has always been assailable and
most readily beaten. Naturally enough the Duke of Gloster exclaims—in
that most subtle second act of _Henry VI._—“Have you not beadles in your
town and things called whips?” Of course they had. The serf, the varlet,
the vagabond, the lunatic, and the petty offender were all whipped with
uncertain severity;[485] most likely until the victim was bloody and
until the operator was tired and felt he had earned his fee. Doubtless
the whips were of all sorts and sizes. They are frequently represented
as having three thongs;[486] Titus Oates was flogged with a whip of
six.[487] I have seen and handled a lash of transportation times, which
had a thick leather thong bound with wire.[488] The cat-o’-nine-tails is
alluded to in the eighteenth century.[489]

Both men and women[490] (the latter up to 1817[491]) were flagellated in
public, being either tied up to a post, or fastened behind a cart and so
thrashed along the road. Perhaps the most obvious thing to do, next to
flogging an offender, was to exhibit him to the populace. The country
was immeasurably more parochial than it is now in these times of travel,
and to be rendered infamous in one’s village or neighbourhood was no
trifling penalty; and so we find the stocks set up in the towns and
hamlets,[492] and, for more serious misdemeanours, there was the lofty
pillory or neck-catcher (the _heals-fang_).

This well-known instrument[493] was made of all shapes and sizes, and
varied from a forked post or a slit pillar[494] to what must have looked
like a penal dovecote made to hold several prisoners.[495] The convicted
were sometimes drawn thither on hurdles, and might be accompanied by
minstrels on the way.[496] The hair of the head and beard was shaved
off, and sometimes the victims were secured by being nailed through the
ears to the framework, and might also be branded.[497] With faces
protruding through the strong beams, and with hands through two holes,
secured and helpless, they were made to stand defenceless before the
crowd as targets for any missiles that might be thrown. To those who
were hated this was a serious ordeal, for they would be so pelted and
knocked about by the mob as to be badly wounded, if not actually done to
death. At length those who had stood their time were released, and those
who had had their ears nailed would be cut free, and then they might
slink away from the scene of shame, or be carried back to prison to
endure additional punishment. The pillory was abolished for all offences
except perjury and subornation in 1816,[498] and altogether in the year
1837.[499]

Before leaving the middle ages we must examine what I have classed as
the poetic punishments. These were the spontaneous reprisals with which
the community strove to repay the criminals in kind, and by which, if
strict taliation were seldom attainable, our ancestors succeeded in
contriving many chastisements that were, at any rate, associable
equivalents. Of these a few examples may be given. For instance, a baker
who sold loaves which were short of weight was shown with the bread tied
round his neck.[500] A fishmonger who had been selling bad fish was
paraded with a collar of stinking smelts slung over his shoulders.[501]
A grocer who had been selling much-adulterated spices was placed in the
pillory and had the powders burned beneath his nose (A.D. 1395).[502] A
heretic who had advocated strict Judaism was sentenced to prison and to
be fed entirely upon pork.[503] The Inquisition attached two pieces of
red cloth in the shape of tongues to the breast, and two more upon the
shoulders of a false witness, which were to be worn for life.[504]
Indeed, badges and crosses were often imposed, and were in these times a
dreadful mark of Cain.[505] In 1505 two men were sentenced by the
archbishop to wear a faggot (or a badge representing one) upon the left
shoulder, to show that they stood in danger of the flames.[506] It would
seem they did, for they were burned alive in 1511.

Louis IX. ordered that those who had spoken indecently should have their
tongues pierced and their upper lips cut away.[507] Pope Innocent IV.
remonstrated with the king against this barbarity. The mutilation of the
tongue was a punishment known and inflicted in England for blasphemy. In
1656 one James Nayler, “the mad Quaker,” had his tongue pierced with a
hot iron for claiming to be the Messiah.[508] He was also whipped at the
cart’s tail, and kept in prison for two years. A drunkard was sometimes
walked about in a barrel, his head protruding from the top and his hands
from two holes made in its sides.[509]

For the village scold[510] they kept the brank or bridle of iron, which
contained a flat (and for the unfortunate witches[511] occasionally a
spiked and painful) gag that went into the mouth and pressed down the
tongue. They might also be placed in the local ducking chair[512] and
immersed in water. A remarkable illustration[513] of the intensely
individual and personal aspect of primitive penalties[514] is furnished
where—as it sometimes happened—the prosecutor had himself to execute his
convict assailant, “or dwelle in prison with the felon unto the time
that he wyll do that office or else find a hangman.”[515]


------------------------------------------------------------------------




                               CHAPTER II

                            THE WITCH TRIALS

Towards the middle of the seventeenth century there lived at Manningtree
a certain Matthew Hopkins, whose name deserves perhaps to be recorded.
Not that he stands by any means apart, a veritable Lucifer among the
devils. Sprenger in Germany, Torquemada in Spain, Grillandus in Italy,
de l’Ancre in France, and other persecutors over Christendom, were
better known and had killed more people. But Hopkins went to work on
English ground. The people were then professing the same creed that the
majority do now. Shakespeare had been in his grave more than a
generation, and trees may have been standing as bushes in the fields and
lanes of Essex which will yet renew leaves and branches at the kiss of
coming spring. Hopkins reveals the spirit of his time, for it has been
wisely observed that every society has the criminals it deserves. His
kind remain with us still as spies and blackmailers, traitors and
“friendly natives” of the tribe of Judas generally. But they derive
their power to harm from the community in which they live. Parasites
need a proper “host” to flourish in. A dark and superstitious age it
must have been to countenance this man; for he was a professional
“discoverer,” or, as he was sometimes called and styled, Witch-Finder
General. He began with the destruction of some half-dozen persons in his
native hamlet. We cannot determine what had marked them down—perhaps
they were his private enemies—moral reform has always been a ready
pretext to work vengeance with, and has been much employed in these
latter days. They may have been old, eccentric, isolated, or insane; in
any case, once seized they had to die, and in their torments implicated
others, most likely any names conveniently suggested to them. The fame
of the new discoverer spread far and wide. Towns and hundreds in the
eastern county, and even places far outside its boundaries, sent to this
fell apostle, saying, “Come over and help us,” and on the track of blood
the monster went. It was his wont to ride upon these expeditions
accompanied by another man, and by a female searcher, whose services
would be required in the minute personal examinations which were carried
out, especially on women. He made an open charge of twenty shillings for
each village visited, but no doubt in this nefarious calling there were
other and more profitable ways of extorting money. Can we not well
imagine what sums may have been paid to him (as they are to the “sex”
blackmailers of to-day) to avoid accusation? How many may have yielded
their little all to save some one who was dear to them from common
ill-usage, probable death, and certain disgrace, which such a charge
involved? Who knows how extorted gold might influence the ordeals
enforced? Who shall say what may have come by stealth to the
witch-finders to bring ruin upon some enemy, perhaps upon some rival?
Who, indeed? From place to place swooped this bird of prey, descending
on peaceful homesteads and capturing whom he chose. Woe to the man, and
still more to the woman, who lived alone, who kept a black cat, or who
was found to carry birthmarks on her body, or to be the least out of the
normal in physical structure! Woe to the person who was eccentric,
subject to fits or trances, or who might be in any way deranged or of
weak intellect! Woe, in fact, to the unhappy creature who by any means
came in for accusation! The Pishogue mark would thenceforth be upon
them; relations would drop away as from contamination with the
plague[516]; and the most brutal rabble of that time would jostle round,
intent upon the chase, with their fierce lust for blood not the less
keen from the idea that there was something Christian in their cruelty.
The victim would then be seized and carried off to further
interrogation, ill-treatment, and torture. Parents and children,
comrades and lovers, might weep in secret, and the boldest might even
venture to denounce the senseless iniquity of the proceedings—at which
they would incur no little danger. But they would speak unheeded, and
have to linger around the gallows till the final act, when something
swayed and dangled from a cord.

But somehow good Master Matthew began to be unpopular, and many reasons
might account for it. Perhaps he had been unwise in the selection of his
“subjects”—it looks like it, for one was an old clergyman—and lived to
find out that some of them had not been quite so friendless as he may
have counted on. Perhaps the supply of lonely or defenceless folk had
given out, or that in pushing his profession so far afield he could not
estimate the new material. “Discoveries,” of course, had to be made to
keep up his reputation and his income, and as he pursued his way through
a wide area it may be that quite a large number of people began to feel
themselves open to accusation, and so were ready to consider it
suspicious that he alone had such an eye for witches. And then a
whispering rose up amongst them, until it reached the persecutor’s ears:
For sure this man is aided by the Devil, or else he would not ferret out
so many. And he may well have started when he saw the anger-light in the
fierce eyes around him, and when he felt at last the frightful
superstitions, which he had kindled and well thriven on, were out of
hand, turned hard against himself. So he produced a little book which
bears the date of 1647, printed, he tells us, “For the benefit of the
whole Kingdome.” It has upon the title-page the somewhat troublesome
quotation, “Thou shalt not suffer a witch to live,” Exodus xxii. 18. We
cannot do better than glance through its pages and at the “Certain
queries answered which have been and which are likely to be objected
against Matthew Hopkins, in his way of finding out witches.”


_Querie I._—That he must needs be the greatest witch, sorcerer, and
wizzard himself, else hee could not doe it.

_Answer._—If Satan’s Kingdome be divided against itself how shall it
stand?


The next paragraph is interesting as once more emphasising the crude and
absolutely material notions conceived of the spiritual world.


_Querie II._—If he never went so farre as is before stated, yet for
certaine he met with the devill and cheated him of his booke, wherein
were written all the witches’ names in England, and if he looks at any
witch he can tell by her countenance what she is; so by this his helpe
is from the devill.

_Answer._—If he had been too hard for the devill and got his booke it
had been to his great commendation and no disgrace at all.


It will be noticed that he does not exactly deny even this report, or
appear to consider it at all unusual to meet the devil walking about
casually. “We must needs argue,” he continues later, “he is of long
standing, above 6000 years, then he must needs be the best scholar in
all knowledge of Arts and tongues, and so have the best skill in
Physicke, etc.” Mr. Hopkins’ own skill, he pleads, was really forced on
him. “This discoverer never travelled for it,” he writes in reply to
Querie V., “but in March 1644 he had some seven or eight of that
horrible sect of witches living in the towne where he lived ... who
every six weeks, in the night (being always on a Friday night), had
their meetings[517] close by his house, and had their severall solemne
sacrifices there offered to the devill, one of which this discoverer
heard speaking to her imps one night and bid them go to another witch,
who was thereupon apprehended and searched by women who had for many
years known the devill’s marks, and found to have three teats about her,
which honest women have not. So upon command from the Justice they were
to keep her from sleep two or three nights, expecting in that time to
see her familiars, which the fourth night she called by their severall
names,[518] and told them in what shape a quarter of an hour before they
came in, there being ten of us in the roome.[519]

“The first she called was (1) Holt, who came in like a white Kitling.
(2) Jamara, who came in like a fat Spaniel without any legs at all....
(3) Vinegar Tom, who was like a long legged grey hound with a head like
an Oxe with a long taile and broad eyes, who, when this discoverer spoke
to and bade him go to the place provided for him and his angels,
immediately transformed himself into the shape of a child foure years
old without a head and gave half a dozen turns about the house and
vanished at the doore. (4) Sacke and Sugar, like a black rabbet. (5)
Newes, like a Polcat. All these vanished away in a little while.
Immediately after this witch confessed severall other witches from whom
she had her imps and named to diverse women where their marks were ...
and imps’ names such as Elimanzer Pyewacket, Peck-in-the-crown, Grizzell
Greedigut, etc.; which no mortall could invent.... Twenty-nine were
condemned at once, four brought twenty-five miles to be hanged where
their discoverer lives, for sending the devill like a beare to kill him
in his garden; so by seeing diverse of the men’s papps and trying
various wayes with hundreds of them, he gained the experience.”

Although his dealings must be described as mild compared with the
ghastly inconceivable tortures in vogue with the inquisitors upon the
Continent,[520] his victims were yet baited and handled with the
grossest cruelty. They were supposed not to weep,[521] being witches,
though indeed cause enough was given them. It is remarkable in this
connection that Shelley,[522] with how much accuracy I am not aware,
alludes to the “dry fixed eyeball” of the tortured. Hutchinson[523] held
this phenomenon to have been due to prolonged deprivation of sleep and
exhaustion. Doubtless the weary length of the investigations, and often
the age and senile desiccation of the victims, might easily explain a
state of tearlessness whenever it was really prevalent.

They were supposed to possess an insensible part in their bodies,[524]
and the examiners would prick over them to try to find it out.
Especially, a witch was affirmed to have somewhere upon her person the
“Devil’s mark.” “Some bigg or place upon their body where he” (the
familiar, imp, or spirit) “sucketh them.”[525] This alleged “mark” might
be almost anything or nothing; from an abnormal, and perhaps atavic,
teat, down to a birthmark, mole, old scar, or even a tiny vein under an
eyelid. They were supposed also to float upon being “swum.”

They were, for the most part, wizen, old creatures, clad in long-used,
greasy garments.[526] Such skirts would retain much air; they might be
bound so as to favour this, or spread, as with Ophelia, widely inflated.
It was quite likely they should thus be upborne (and also, for they were
mostly poor and thin, that the heavy, sometimes chained, Bible should
outweigh them in the ordeal with scales). But ordeals are uncertain and
dangerous unless they can be carefully manipulated. Mr. Hopkins had been
keen on the water test; it was the finishing touch and proof at the end
of a long series of torments and examinations.

But a day came, it is said, on which a few brave Englishmen, who had
perhaps lost some one near and dear to them at his hands, laid hold upon
the witch-finder himself, and binding him in a sack, cast him into a
pool. It was a bold act, in those savage days, to interfere with any
kind of inquisition. Catholic or Puritan, and was no doubt attended with
great risk. But only for a moment in this case, for there before them
bobbed the dread discoverer of witches, floating upon the surface of the
water; and all declared the devil got his own. But such an end was
altogether unexpected and unusual; it was downright bad luck and
misfortune, from Mr. Hopkins’ point of view. His position appeared
unassailable, and indeed probably would have been, if he had kept to the
right sort of people, and practised on the isolated or unpopular, who
could have been legitimately sacrificed. All he had done was quite
lawful and regular.

Witchcraft, like many acts against religion and morality, had always
been an ecclesiastical offence, and had been punished in the secular
courts as leading to murder and personal injury,[527] and it was made a
felony in 1541.[528] But it was the (then) recent law of 1603 that was
much in force,[529] by which, in the quaint language of the statute, it
was forbidden, upon pain of death, to “employ, feed, or reward an evil
and wicked spirit.”[530] And since the High Court of Parliament had
recognised witches,[531] it became necessary to investigate accusations
and probe for “spirits” through the forms of law. Thus Hopkins could
claim to be a moral reformer, putting in force the statute of the realm;
he could quote Scripture clearly to his purpose, the justices and
gaolers obeyed his call, assizes waited to condemn his prisoners. And if
his method seemed superstitious or barbarous, he could perhaps cite Mr.
Perkins’ way,[532] or could refer to Mr. Kincaid’s custom in these
matters,[533] and could quote standard works with precedent on his
side.[534]

So he seemed truly to have a safe task and a paying one, built up upon
the prejudices of the people. But as by their superstitions he rose, so
also by them he fell—utterly, and unpitied.[535] It was not his
monstrous cruelties, but “God’s ordeal,” which showed him up, delivered
to the devil; and, in the caustic words of Samuel Butler, as one “who
after proved himself a witch, and made a rod for his own breech.”[536]

But now, dismissing this particular parasite, we may review the course
of thought upon the question. Belief in witchcraft is so ancient and so
universal,[537] that the existing religions, and perhaps all religions
whatsoever, must have arisen in its atmosphere.

From time to time the Christian Church dealt with the question,[538] and
had elaborated quite a ritual of tests and remedies. And it was after
nearly fifteen hundred years of Christianity that Pope Innocent
VIII.[539] issued a special Bull against all supposed witches (December
5, 1484), naming one Sprenger, a Dominican, and Krämar—whose name
latinised to Institor—inquisitors to seek and punish them; and this they
did with frightful cruelty. They wrote a text-book on their methods and
discoveries about 1489, and kept the torture chambers busy and the
faggots fiercely burning.

Their book was answered by John Wier, physician to the Duke of Cleves,
in 1563.[540] He refuted many of the grosser superstitions prevailing,
and also suggested that the devil deceived people and made many confess
to impossible practices;[541] likewise, that the witches did not really
occasion the illnesses and calamities which they were accused of causing
and even admitted having brought about.[542]

At first the work awakened only controversy and condemnation—a stage in
advance, however, since the most wronged are generally undefended, and
pass to their doom in silence and with no one to speak for them.

In 1580 Bodin, a French writer, published a most furious attack on Dr.
Wier, declaring him to have been the pupil of a sorcerer and that he
wrote inspired by the devil. He reiterated all the old fantastic stories
as being true, and in the hideous procedure of investigation which he
set forth, applied such diverse and such agonising torments as could not
have been surpassed by any of the earlier inquisitors.

Bodin in turn was answered, from England, by Reginald Scot, in 1584, who
wrote a long and powerful review of the witch persecutions, in which he
quotes extensively from Sprenger, Bodin, and the Continental tormentors.
Full of wise saws and modern instances, he cast doubts on the rationale
of the witchcraft tests and trials.

But although just a century had gone by since Innocent launched his Bull
from the Papal throne, many poor people, some at that time unborn, were
destined still to suffer trial and torture. And more than another
century had to pass before the law would leave “witches” alone; before
afflicted, half-mad, or unpopular old women could throw crumbs to the
sparrows upon the snow, or keep a cat, without danger of death. King
James, as a young man, fell foul of both Scot and Wier in 1597. Speaking
of them he said: “One called Scot, an Englishman, is not ashamed in
publicke print to deny that there can be such a thing as witchcraft, and
so he maintains the old error of the Sadducees in denying spirits. The
other called Wierus, a German phisition, sets out a publick apologie for
al these craftes-folkes—whereby procuring for their impunitie he plainly
betrayes himselfe to have been one of their profession”; and six years
later came his grotesque law already alluded to, sanctioned with all the
weight of Parliament.[543] The trials in Germany were severely
criticised in 1631 by Father Spee, who published his book at first
anonymously,[544] and checked the ardour and the cruelty of the courts.

But they were defended again by Joseph Glanvil,[545] chaplain to the
king, in 1681. About this time Dr. Bekker, a clergyman, living in
Holland, compiled four lengthy volumes about witchcraft,[546] in which
he contended that neither devils nor spirits could act on mankind. In
England, ten years later, wrote Richard Baxter,[547] author of _The
Saints’ Rest_ and other evangelical works which were widely read,
supporting the weird beliefs of the witchcraft schoolmen.

By this time the persecutions, which were waning in England, had broken
out at Salem in America; and we find Cotton Mather (like Glanvil, a
divine, and F.R.S.) writing a little book[548] to justify their
existence[549] (and his own conduct, for many were sceptical), upon that
continent where, as he quaintly says, the Pilgrim Fathers “imagined that
they should leave their posterity in a place where they should never see
the inroads of Profanity or Superstition.” The records of the nineteen
executions in this neighbourhood, of one poor creature who was pressed
to death, and of the crowd of unhappy suspects who were cast into the
prison,[550] show how the frenzy of this murderous “revival” swept like
an epidemic down upon the settlement,[551] so that for fifteen months
the air seemed charged and laden with hysteria, and are a grim
commentary. But evolution operates even on taboos and superstitions, and
this was probably the last general persecution, and Bishop Hutchinson
called his learned work _An Historical Essay_,[552] for it was dealing
mainly with the past. The law lagged behind, however, as it generally
does, the statute of James I. (1603) being, when Hutchinson wrote, “now
in force” in 1718.

And so it continued for eighteen years longer, until repealed in
1736.[553] In Ireland the law lasted until 1821. Witchcraft was clearly
kept alive by theology. People who really believed in a personal devil
(and even those who questioned the witch convictions assumed the devil
to be very much alive), designing mischief and disguised everywhere,
could easily accept tales of familiar spirits.[554]

Those who received the Hebrew and Christian records as altogether
inspired, could not ignore possession and sorcery.[555] “Après que Dieu
a parlé,” says de l’Ancre, “de sa propre bouche des magiciens et
sorciers, qui est l’incrédule qui en peut justement douter?”[556] And
Sir Matthew Hale said in his summing up: “That there were such creatures
as witches, he made no doubt at all. For, first, the Scriptures had
affirmed so much; secondly, the wisdom of all nations had provided laws
against such persons, which is an argument of their confidence of such a
crime.”[557]

Speaking of a particular case, Mr. H. L. Stephen[558] quotes Campbell as
follows: “... During the trial the imposture practised by the
prosecutors was detected and exposed. Hales’ motives were most laudable;
but he furnished a memorable instance of the mischief originating from
superstition. He was afraid of an acquittal or a pardon, lest
countenance should be given to a disbelief in witchcraft, which he
considered tantamount to disbelief in Christianity.” Glanvil[559]
follows on the same side, arguing with great ingenuity from the
scriptural point of view (for instance, in dealing with certain
doctrines as to the fate of unbaptized children, p. 22). “The question
whether there are witches or not,” he begins in Part ii., “is not a
matter of vain speculation or of indifferent moment, but an inquiry of
very great and weighty importance. For on the resolution of it depends
the authority of our laws, and, which is more, our religion, in its main
doctrines, is nearly concerned.”

And what may be called the religious belief in witches[560]—a very
different thing from the torturing of them—outlived the penal laws
concerning them.[561] The Rev. John Brown of Haddington (1703–1791)[561]
complained of the repeal of King James’s Act,[562] and even John Wesley
(1722–1787) declared that giving up witchcraft is, in effect, giving up
the Bible.[563] On page 366 of the journal[564] which he edited we read:
“With my latest breath will I bear testimony against giving up to
infidels one great proof of the invisible world. I mean that of
witchcraft and apparitions, confirmed by the testimony of all
ages”;[565] and Huxley[566] alluded to a contemporary clergyman who had
been preaching diabolical agency. Nor did the actual persecutions cease
altogether, and though the last legal trial in England took place in
1712[567] (the last execution in Europe is given by Lecky[568] as
occurring in Switzerland in 1782; another authority mentions Posen,[569]
with date 1793), sporadic outrages continued in the country, and persist
in a modified form to the present day.[570] At Clonmel, Ireland, in
1895,[571] a poor old woman was placed upon the kitchen fire by her own
family and burned, so that she died from the effects.[572] But what were
once pious customs and duties had at length become crimes, and the chief
mover in this latest witch trial got (to the best of my recollection)
twenty years’ penal servitude.

A belief so universal as that in witchcraft must clearly be founded upon
positive phenomena. It will not serve our purpose to discuss what yet
unknown supernormal powers might be attained under special conditions,
or how much more there may be to discover beyond X-rays and wireless
telegraphy. For while old ideas as to imps and devils, brooms and black
cats, were manifestly ridiculous, and although the abnormal powers,
whatever they may have been, could work no rescue in the hour of need,
there may be many things in heaven and earth undreamed of in our present
state of knowledge. But ordinary witch cases appear to have been
resolvable into the examination of—

(_a_) Hysterical subjects—sometimes crowds of them—who might imagine
anything and accuse anybody, including themselves. Such people were (and
are) often given to swallowing needles and other things, some of which
found their way through the body and emerged from all parts of it.[573]
This would have been considered strong evidence of diabolical agency.
Many of these would be subject to epilepsy, catalepsy—accompanied
sometimes by that strange insensibility to pain[574] which is a
well-marked symptom in hysteria, and which was remarked on by the
torturers—and to obscure nerve diseases generally.

(_b_) “Wise women,”[575] midwives, doctors good and bad, who may,
according to the custom of the times in which, as among savages,
magic[576] and medicine were inextricably mingled, have resorted to
charms[577] (as are still employed by old women to cure warts), and
sometimes, doubtless, to preparing and administering actual
poisons;[578] and who, whenever anything remarkable occurred, were
always liable to be accused of having in some way trafficked with the
all-explaining devil.[579] They sometimes claimed to possess the powers
of witches, and tried to gain support or protection from being feared,
deceiving others and often themselves as well.[580]

(_c_) Private enemies,[581] whom an accusation of witchcraft,[582] or of
any of the little group of offences[583] which were always supposed to
be closely allied with it,[584] was the readiest way to ruin.[585]

(_d_) People accused for the sake of gain by means of deliberate plots
and conspiracies. Feigning to be bewitched, and naming some (known to
be) innocent person as the cause of the mischief, was a mean crime that
was by no means uncommon, and many flagrant instances are given of it by
early criticisers.[586]

(_e_) The main body of the victims.[587] Old women who had outlived
family and friends, who were helpless and solitary,[588] ugly from age,
unclean from infirmities, eccentric in wisdom, crazy with delusions,
palsied in limbs, or wandering in mind.[589] All these, or nearly half
the old folks in the land, were always liable to accusation on account
of their misfortunes.[590] They were the wretched scapegoats of those
times, on whom was laid whatever might befall, from epileptic fits to
summer hail.[591]

It was a crime imputed with so much ease and repelled with so much
difficulty, that the powerful, whenever they wanted to ruin the weak,
... had only to accuse them of witchcraft to secure their
destruction.—C. Mackay, _Popular Delusions_, p. 109. A certain G. Naudé,
“late Library Keeper to Cardinal Mazarin,” wrote a book, entitled _The
History of Magic_, “By way of apology for all the wise men who have
unjustly been reputed magicians from the creation to the present age.”
Englished by J. Davies. London, 1657.]

(_f_) The people denounced by prisoners under torture. As we have seen,
accusation meant examination, and this had two objects: to extort a
“confession” from the suspected witch, and to compel her to reveal
accomplices. Some might confess at once, and did so in the hope of
execution (the _kind_ of confession required was already well known, and
the more monstrous and elaborate it might be, the better would be the
chance of escaping torture). Others would naturally deny taking part in
abominations in which they had not engaged, and most of which were
beyond possibility. And no doubt nearly all would make a long and
desperate struggle against incriminating their unfortunate friends, who
might, however innocent of crime, be also other people’s enemies. And so
the accursed ingenuity of man was practised on these miserable victims
of his ignorance and superstition. One hideous device[592] tried by a
Frankish king was to drive sharp spikes underneath the nails;[593] this,
he contended, always induced confession from the intense anguish. Very
likely it did.

Other inquisitors went their own sweet way, and used all possible
varieties of the question, that they might make out of the shrieks and
ravings the sort of story they expected and prompted,[594] and lash more
suspects down upon the rack. No wonder, then, that persecution
spread;[595] the aged and the disordered were always there, and any one
of these might be thought a witch,[596] or find herself denounced from
the torture-room—perhaps by a lifelong friend.

The readiness with which all “evidence” was acclaimed and the appalling
means by which it was got together placed any abnormal person in
constant peril, and will account for the enormous numbers of the
implicated. Tens of thousands of victims, says Lecky,[597] perished by
the most agonising and protracted torments without exciting the faintest
compassion. In a single German city they used to burn 300 witches
annually.[598] In Nancy, 800 were put to death by a judge in the course
of sixteen years.[599] Zachary Gray,[600] who edited an edition of
_Hudibras_, claims that during the Long Parliament 500 witches were
executed each year, and that he read through a list of no less than 3000
of them.[601] The total of Great Britain has been estimated at
30,000,[602] and it has been estimated that during the sixteenth and
seventeenth centuries the witch death-roll for Europe[603] reached
200,000 people.[604]

Perhaps the sidelights give a more graphic conception of what went on in
those dark days of error. Listen to this complaint of a French
writer[605] who evidently thought he was approaching the “last days.”
“Was it [sorcery] ever so much in vogue as here in this unhappy
[sixteenth] century? The benches of our courts are all blackened by
them; there are not sufficient magistrates to hear the cases. Our
prisons are gorged with witches, and not a day passes but our warrants
are ensanguined with them, and we return saddened to our homes, shocked
at the ghastly and appalling things that they confess.” And in our own
land, about fifty years later, we come upon a letter written to Sir
Edmund Spencer in 1647: “Within the compass of two years near upon 300
witches were arraigned, and the greater part executed, in Essex and
Suffolk only. Scotland swarms with them now more than ever, and persons
of good quality executed daily.”[606]

It was in Scotland, likewise, that there used to be kept a chest “locked
with three severall locks and opened every fifteenth daie,”[607] which
might receive, as did the Lion’s Mouth at Venice, denunciations slipped
in secretly; and that in 1661 the justices were ordered to attend
certain towns to hear cases of witchcraft at least once a week.[608]

The witch trials are ended. So far as _they_ are concerned, we can look
back from the heights of history over this vast red sea of superstition
which has swallowed up such multitudes. And to think it was all so
useless, so unnecessary![609] but yet by no means hard to be explained.
The underlying and provocative phenomena had really been present in a
huge number of cases (and when they were not, were fervently conceived,
and so suggested, looked for, and enforced as to set up all kinds of
hallucinations in the accusers and sometimes in the accused), and in
default of tracing out their causes,[610] evident or recondite, clergy
and jurists, and of course the populace, gave out a false and
thaumaturgical account of them. They were correct in affirming many
amazing facts and phenomena (and all these persist, for nature has not
changed.[611] There are at least as many abnormal and half-mad people
amongst us now as there ever were, only we treat the clearer cases
kindly, and are no longer afraid of mythical influences), although these
were magnified and multiplied million-fold, for Superstition is a
monster that grows by feeding. They were fantastic in their fabulous
explanations of them. The rest—in those cruel times when torture was as
common as is cross-examination—followed quite naturally. The doctors,
theological and legal, erred in their diagnosis, mistaking diseases for
devils and abnormality for magic. We shall come upon this again, crass
and close at hand. May the Future condemn the Present, as we now deplore
the Past.

------------------------------------------------------------------------




                              CHAPTER III

                        TREATMENT OF THE INSANE

As the abnormal and the rationally eccentric were considered witches,
and held to have been disciples of the devil, so the more obviously
sense-bereft were thought to be controlled by the fiends within them.
Both witches and lunatics were held to be beneath the sway of infernal
powers, but the former as willing agents of the devil, and the latter as
involuntary victims, who were deemed to be possessed. In ancient Egypt,
by the Temple of Saturn,[612] in classic Greece with the Asclepieia, and
by the laws of Pagan Rome,[613] the mentally afflicted were treated with
humanity, and, if without the aid of our present science, at least upon
the same broad principles which we adopt to-day.

In the warm sunlight of the Eastern lands the life of the population was
spent in the open air. As we read in the Scriptures and in books of
travel, the lunatic might dwell amidst the tombs. He could wander
through the soothing cypress groves in the moonlight or lie under
shading palm in the noontide heat. He dwelt apart, like the leper, cut
off by his terrible infirmity from the kinship of reason, but free at
least in the air and sunlight, and often allowed a quite especial
licence[614] as being in the guardianship of God.[615] But the
troublesome conduct into which lunatics were ever liable to be led[616]
would frequently rouse the instinct of retaliation, and bring down swift
and heavy punishment upon them.[617]

In Europe also and in England the less-dangerous lunatics “were allowed
to wander about the country,[618] beggars and vagabonds, affording
sport[619] and mockery.” We get a vivid glimpse from Shakespeare of that
“poor Tom[620] that eats the swimming frog, the toad, the tadpole, the
wall newt and the water newt, that in the fury of his heart, when the
foul fiend rages, eats cow-dung for sallets, swallows the old rat and
the ditch dog, drinks the green mantle of the slimy pool;[621] who is
whipt from tything to tything, and stocked, punished, and
imprisoned.”[622]

This was the lot of sufferers in those times, and beyond doubt a certain
number of them, unmindful or unheedful of savage laws, obeyed the
obsessing suicidal impulse which is so common among mad people; and
through this many of the most afflicted must have been taken, in the
mercy of nature, out of the world of men in which they had no part. But
if the half-witted poor were allowed to wander,[623] those of the richer
class were less fortunate. Their families were shy and ashamed of them;
they were concealed and locked in garrets and cellars, or penned apart,
secured in sheds and outhouses—fastened up anywhere about the
premises.[624]

Medicines there were indeed for the insane patients, and some of them
might have added to the witches’ cauldron.[625] Among the less nauseous
of these came wolf’s and lion’s flesh,[626] and as our Saxon forefathers
were skilled herbalists, we find the clovewort, polion, and peony
recommended,[627] also the mandrake, round which many stories were woven
from its resemblance to the human form. They said: “For witlessness,
that is, for devil sickness or demoniacal possession, take from the body
of the same wort mandrake by weight of three pennies, administer to
drink in warm water as he may find convenient; soon he will be
healed.”[628]

Doubtless in all civilisations the more acutely insane would have to be
a care for the community.[629] The early Christians tended them in their
churches, in which they stood in a special part,[630] and where they
were provided with food “while they abode in the church, which, it
seems, was the chief place of their residence and habitation.”[631]

The monks to some extent looked after them in their monasteries.[632]
But whatever medicines or other remedies they may have employed, the
main idea of those days about lunacy was that it came through demoniacal
possession. The object was to drive the devils out. To accomplish this
they seem to have resorted to all sorts of incongruous “cures,” both
ghostly and physical.[633] The great spiritual weapon has always been
exorcism. This was the primal art of all religions, and it was practised
also by the early Christians.

In the third century the exorcists were formed into a special
order.[634] “When an exorcist is ordained,” we read, “he shall receive
at the hands of the bishop a book wherein the forms of exorcism are
written. These forms were certain passages together with adjurations in
the name of Christ commanding the unclean spirit to depart out of the
possessed person.” This custom has continued through the centuries,[635]
forming the subject of innumerable legends and pictures relating to
saints and teachers in the middle ages; and though the practice seems to
be in abeyance,[636] the old idea of exorcism is not dead. We must
perceive this when we read,[637] for instance, “Water and salt are
exorcised by the priest, and so withdrawn from the power of Satan, who,
since the Fall, has corrupted and abused even inanimate things.[638] But
besides the weapons, mystic and spiritual, employed by the Church, were
others of a more corporeal character.

The patients were bound to venerated crosses at evening, to be released
as cured in the morning.[639] They were chained fast to stones in
various churches; they were dipped into holy wells—this custom lasted in
Cornwall to modern times; and they were sent as pilgrims to
shrines,[640] at some of which they underwent a regular course of
treatment; music was often an important element.[641] And remedies far
more drastic might be provided, which relied not so much upon the power
of the saints as on the human weakness of the devils.

Thus, scattered among the recipes for herbs and all the indescribable
filthy mixtures which were advocated for insanity,[642] we come across
the following prescription, the effects of which would prove anything
but imaginary:—“In case a man be a lunatic, take skin of a mereswine or
porpoise, work it into a whip, swinge the man well therewith, soon he
will be well. Amen.” At one monastery the lunatics in the charge of the
monks are said to have received ten lashes every day.[643]

The insane have been flogged for various reasons:—(1) Superstitiously,
to drive out the devil, and even to scare away a disease; (2)
therapeutically, because pain and shock would often subdue the ravings
of the patients, although only temporarily; (3) instinctively, as a
relief to their keepers’ feelings. The medical and the brutal whippings
we shall meet again later on, long after devil-driving had been
abandoned, though it prevailed through Christendom for probably over
sixteen hundred years. To understand it we must turn aside to savages.

Primitive peoples,[644] like children, _personified_ everything. Disease
appeared to be a sort of personal entity—like that deceitful dream[645]
Zeus sent to Agamemnon—a “thing” “to be drawn out in an invisible form,
and burnt in the fire or thrown into the water.” A foe invisible, but
yet so human in its limitations as to be stopped by thorns placed in its
path.[646] And if all manner of physical ailments were looked upon as
being, or, at any rate, as emanating from personal demons, much more
would such a fearful and mysterious affliction as insanity be held to
indicate a devil’s presence and immediate handiwork.[647] Moreover, to
the primitive mind, the demons of all sorts were much too near, too
vividly conceived, too real, too commonplace, to be regarded as
spiritual beings within the modern meaning of the word. They were
conceived as obviously living and moving about,[648] and therefore as
being human in their character. Thus among savages “the souls of the
dead are thought susceptible of being beaten, hurt, and driven like any
other living creatures,”[649] and demons could be hunted out of the
houses and scared away to woods and outer darkness.[650]

The ideas of the profoundly superstitious middle ages resembled these.
Even the great opponent or accuser, Satan, who was restored by Milton to
the rôle of Ahriman,[651] was but a wretched creature, a poor
devil,[652] in the popular imagination. “He” is continually outwitted
like the pantomime policeman,[653] and nonplussed by the shallowest
equivocations.[654] He beats a man[655] and is beaten and
vanquished.[656] He aims a stone at Dunstan and misses,[657] and when
seized by the nose with pincers, his bellowings are heard for three
miles round.[658] He howls when sprinkled with holy water,[659] and
Luther hurls an inkstand at his head.[660] This man-like and material
monster of course felt pain, and when he took up his abode in a human
body he was supposed to feel the blows inflicted on the sufferer.[661]
It was the devil (or his representative) who might be driven out of man
or woman; the demons could be commanded to quit each portion of the
invaded body, member by member.[662] The fiends were supposed to writhe
in anguish[663] when the possessed cowered beneath salt water or the
whip.[664] On _them_ the curses and the stripes were meant to
descend,[665] until at last, through unendurable torments, they fled the
body by the nearest orifice.[666]

This crude and savage way of expelling “devils” was long continued;
belief in it is probably by no means dead in the minds of some
countryfolk. Hawthorne, writing of the seventeenth century
Puritans,[667] makes the gaoler say of his prisoner, “Verily she hath
been like a possessed one, and there lacks but little that I should take
in hand to drive Satan out of her with stripes.” But there were times
enough when exorcism failed and flogging proved unavailing. Then the
insane would have to be restrained and subjected to some sort of
treatment[668]—to say some sort of _ill-treatment_ were nearer the
truth. Doubtless they always aimed at quieting the more troublesome
patients, and bringing them into order, if not back to reason.

Says Andrew Boorde in his strange _Regyment of Health_:[669] “I do
advertyse every mā the which is mad or lunaticke or frenticke or
demoniacke, to be kept in save garde in some close house or chambre
where there is lytell lyght. And that he have a keper the which the mad
man do feare.” The same idea we see expressed by Shakespeare:[670]
“We’ll have him in a dark room and bound,” is the immediate cry towards
the mad. Shut up and bound they were, in all manner of ways and places,
by relatives, monks, and keepers. As we have seen, many were executed as
witches or malefactors, and would be thrown into gatehouses and
prisons,[671] where they might furnish horrible diversion for the other
prisoners,[672] and where they were sometimes drugged to make them
silent and to cease from raving.[673] Sometimes they were placed in such
hospitals as there were,[674] along with fever and accident cases.[675]

In the course of time, as population spread and townships grew, the old
resorts were found to be inadequate. The number of the lunatics was
increasing, and the whole country was filling up and enclosing. Whipping
from place to place became ineffective, and there had been no public
institutions available but monasteries, gaols, and hospitals.[676] In
the year 1247 was founded by Bishopsgate the Priory of St. Mary of
Bethlem,[677] and here insane people were kept and tended, at any rate
from 1403. Doubtless there came to be other places thus put to use, such
as, for instance, one St. Katherine’s by the Tower,[678] where, we are
told, “they used to keep the better sort of mad folks.” But it was not
until about the middle of the eighteenth century[679] that grim and
sombre circumvallate buildings began to be erected to intern the
troublesome.[680] “They were,” says Dr. Conolly,[681] “but prisons of
the worst description. Small openings in the walls, unglazed, or whether
glazed or not, guarded with strong iron bars, narrow corridors, dark
cells, desolate courts, where no tree nor shrub nor flower nor blade of
grass grew.[682] Solitariness, or companionship so indiscriminate as to
be worse than solitude; terrible attendants armed with whips ... and
free to impose manacles and chains and stripes at their own brutal will;
uncleanness, semi-starvation, the garrotte, and unpunished murders—these
were the characteristics of such buildings throughout Europe.” What may
be called the theoretical treatment was bad enough. Those who could not
be cured must be subdued;[683] the teaching of Boerhaave and Cullen
admitted this, and the latter wrote: “Fear being the passion that
diminishes excitement, may therefore be opposed to the excess of it, and
particularly to the angry and irascible excitement of maniacs; these
being more susceptible of fear than might be expected, it appears to me
to have been commonly useful.”[684]

It was desired “to acquire some awe over them,”[685] and he declares
that “sometimes it may be necessary to acquire it even by stripes and
blows.”[686] This was the therapeutic flogging already alluded to.[687]
Shock, terror, blistering, bleeding, purging, the use of chains and all
manner of manacles[688]—these were the means employed and set down in
the textbooks to heal the disordered mechanism of the brain.[689]

In the _Gentleman’s Magazine_ of 1765[690] we read of the private
asylums that “persons were taken forcibly to these houses without any
authority, instantly seized by a set of inhuman ruffians trained up to
this barbarous profession, stripped naked, and conveyed to a dark room.”
So ignorant were the doctors of those days as to the nature of insanity
that the harsh cruelties practised on private patients were carried out
even upon the king. Of the eighteenth-century practice Mr. Massie has
written:[691] “Mental disease was at that time a branch of art little
understood, and the specific treatment of lunatics was worthy of the
barbarous age of medicine. The unhappy patient” (King George III.) “upon
whom this most terrible visitation of Heaven had fallen, was no longer
dealt with as a human being. His body was immediately enclosed in a
machine, which left it no liberty of motion. He was sometimes chained to
a staple. He was frequently beaten and starved, and at least he was kept
in subjection by menacing and violent language.” That, like most
lunatics, he was very annoying is certain; he once talked for nineteen
hours unceasing. But all his troubles were intensified by
ill-treatment;[692] they left him to be knocked about by a German
servant,[693] and the first doctors kept him even from his own children,
at which the poor old man complained “very heavily.”[694] Such, then,
was the orthodox treatment applied against the highest in the land. But
the worst deeds were done behind thick walls. “Sane people,” says
Beach,[695] writing of private establishments, “were frequently confined
in these asylums, for persons frequently availed themselves of the
facilities[696] then in use in order to get rid of a troublesome
relative or to obtain some selfish object.”

And what of the really mad?[697]—irritable, violent, irrational,
helpless, often with as little control over the functions of the body as
on the workings of the mind. We can imagine what their state became when
left in the hands of ignorant practitioners and brutal attendants, with
chains and instruments of restraint convenient and ready. Screened off
from all kith and kin they writhed with sores and rotted in ordure.[698]
Sometimes—mostly on Monday mornings after the Sabbath rest and
accumulations—they might be carried out into a yard[698] to be mopped
and soused from pails in the coldest weather.[699]

The condition of the living rooms and wards[700] was often such that
visitors grew physically sick from going into them;[701] but they were
rare within those private prisons,[702] strangers are never welcome
behind the walls. At York Asylum[703]—an especial plague spot opened in
1777 and burnt,[704] it is said, to avoid disclosures that might hang
its keepers,[705] in 1814—a rule was adopted in 1813 “that no
person[706] shall be allowed to visit any of the patients without a
special written order signed by the physitian.” Official visitors were
generally harmless.[707] At York the worst rooms were not shown
them.[708] For most of the small asylums there were none at all.[709]

Even the larger public asylums during the eighteenth, and also far into
the nineteenth century, were horrible monuments of cruelty and neglect.
The miserable patients lay upon straw in cells,[710] or upon wooden
shelves to which they were fastened. Many were naked or decked over with
one blanket.[711] In the wards they were frequently chained to the wall
by wrist or ankle,[712] and occasionally by both. One patient at
Bethlem,[713] a fierce, powerful man whose name was Norris, after a
fracas with a drunken keeper, had his arms and shoulders encased in a
frame of iron obtained from Newgate.[714] This instrument[715] was
attached by a twelve-inch chain to a collar round his neck, from a ring
round a vertical iron bar which had been built into the wall by the head
of his bed.[716] His right leg was secured to the frame upon which he
lay. The effect was that the patient could move up and down as far as
the ring and short chain round the upright bar permitted, but he could
not stir one foot from the wall, and could only rest lying upon his
back. “In this thraldom,” says Dr. Conolly,[717] “he had lived for
twelve years. During much of this time he is reported to have been
rational in his conversation. At length relief came, which he only lived
about a year to enjoy. It is painful to add that this long-continued
punishment had the recorded approbation of all the authorities of the
hospital. Nothing can more forcibly illustrate the hardening effect of
being habitual witnesses of cruelty, and the process which the heart of
man undergoes when allowed to exercise irresponsible power.”

The medical men were poorly paid and proportionately neglectful. At the
time of which we are speaking—the end of the eighteenth and the
beginning of the nineteenth century—the physician at Bedlam got only
£100 a year.[718] However, he kept a private asylum, and sometimes left
the public institution for months together.[719] One of the surgeons is
described as having been “generally insane and mostly drunk,” in spite
of which he was retained there for ten years.[720]

With such shameful neglect and callousness on the part of the
doctors—there appear to have been no chaplains in those days[721]—it is
not to be wondered that the unhappy patients fell entirely into the
hands of their keepers and immediate attendants, and most of these were
quite ignorant people, rendered impatient and brutal by the exasperating
ways of the demented inmates, and by their boundless power over them.
Instinctive and retaliative floggings (the third kind, alluded to on p.
149), assaults, and possibly even murders, were not uncommon, as well as
the distressing and unlimited restraints already referred to.[722] One
doctor invented and introduced a special instrument to prize open the
patients’ mouths at compulsory feeding. He mentions that, by the usual
process, teeth were apt to be broken, and some were left “without a
front tooth in either jaw.”[723]

In the eighteenth century[724]—up to 1770—and in some places, doubtless,
even to later times, the mad people were reckoned among the
“sights.”[725] The public paid[726] to go round the asylums, as they do
now to gaze upon wild beasts.[727] The baser and more mischievous among
them would irritate and purposely enrage the secured patients, as their
descendants tease caged animals to this day;[728] and thus reproduced
for their ghastly diversion “exhibitions of madness which are no longer
to be found, because they were not the simple product of malady, but of
malady aggravated by mismanagement.”

Such conduct appears to have been general in those times.[729] At
Geneva[730] some lunatics would be given grass and horrible things to
eat to amuse visitors. This also happened at the Bicêtre,[731] in
certain parts of Germany, etc.[732] “Les Fous de Charenton” became, for
a time, notorious for their plays,[733] which were presented with much
sound and fury, attracting spectators from very grotesqueness. They were
forbidden in 1811.

High walls kept things dark for years, but the light stole through in
the end, as it always will.[734] In 1793 Pinel removed the chains from
patients in the Bicêtre. At home, the York Asylum, already alluded to,
began to bear an evil reputation. In 1788 it incurred the
_Animadversions_[735] of the Rev. William Mason.[736] In the year 1791
some friends of a female patient desired to visit her, but were not
allowed, upon the plea that she was not in a suitable condition to be
seen by strangers (she probably was not!) A few weeks after this she was
reported dead.[737] The woman belonged to the Society of Friends, and
the suspicious circumstances of her incarceration caused much resentment
among the Quakers. Soon after, William Tuke resolved that they should
have a hospital of their own. The Retreat was started in the year 1792,
and its humane and enlightened methods were soon contrasted with the
barbarous and secret administration prevailing at the older institution.
But the years rolled by while patients languished and died. It was in
1813 that Samuel Tuke—a grandson of the founder of the Retreat—brought
out a little work[738] describing the system there. It “excited
universal interest, and, in fact, achieved what all the talents and
public spirit of Mason and his friends had failed to accomplish. It had
still better effects. A very inoffensive passage in this book roused, it
seems, the animosity of the physician to York Lunatic Asylum, and a
letter which this gentleman published in one of the York newspapers[739]
became the origin of a controversy among the governors of that
establishment, which terminated in August 1814, after a struggle of
nearly two years, in the complete overthrow of the old system, and the
dismission of every officer of the asylum, except the physician
himself.”[740]

The conflict was taken up by others and carried on. Towards the close of
that same year (1813), a case of alleged misconduct was brought forward
by Mr. Godfrey Higgins, a magistrate for the West Riding. “Mr. Higgins’
statement was read” (before twenty-seven governors), “after which the
accused servants of the house were called in and sworn. They denied upon
oath the truth of the charges. No other evidence was called for; nor was
any minute committed to writing of what had been sworn by the servants.
The following resolution was passed:—The governors having taken into
consideration the statements published in the York and other newspapers
respecting the treatment of William Vicars, lately a patient in this
asylum, ... are unanimously of opinion that ... he was treated with all
possible care, attention, and humanity.”[741] It was of no avail;
thirteen gentlemen of the county came forward with donations, in virtue
of which they qualified as governors. These new men brought their votes
to bear to force on an inquiry, and though the old gang of scoundrels
never got their deserts, and, to conceal their guilt, are said to have
set the premises on fire, yet they were driven out of their situations,
and soon investigation became national.

In 1814 Mr. George Rose brought in a Bill to regulate asylums, which
passed the House of Commons. But the authorities at Bedlam opposed the
measure,[742] spending over £600 in so doing. They had good cause, as we
shall see presently. The York Asylum governors—nineteen of them,
including the archbishop—sent in a petition against it; and the intrepid
Mr. Higgins sent one in its favour, signed by himself.[743] The Bill was
thrown out by the House of Lords,[744] but a committee of the House of
Commons was then appointed, and collected the inconceivable and horrible
evidence from which we have quoted. Its report was presented by Mr. Rose
in 1815,[745] and though the committee at Bedlam formally exonerated its
officials for all things they had done and neglected to do, including
even the dreadful instrument placed round Norris,[746] the unofficial
mind of the public had been roused to indignation, and many of the worst
abuses were presently remedied.

Mr. Rose died in 1818, but in the following year Mr. Wynn brought
forward another Bill, which was, however, opposed by Lord Eldon, who
observed[747] that “there could not be a more false humanity than
over-humanity with regard to persons afflicted with insanity,” a line of
argument which we shall come on again. That Bill shared the fate of its
predecessor. It was not until nine years afterwards that Mr. Gordon
secured the passing of an Act[748] to improve the asylums, in the year
1828. Though abuses continued into the middle of the nineteenth
century,[749] and many Acts of Parliament were subsequently brought
in,[750] the monstrous evils of which we have spoken continued as crimes
where previously they had been customs, and took place on a much
diminished scale.

At Lincoln Asylum,[751] about 1838, Dr. Gardner Hill removed mechanical
restraints, and Dr. Conolly[752] followed at Hanwell in the succeeding
year. In this they were, of course, opposed in the Profession,[753] but
new ideas and new conceptions were coming, which are still working in
the treatment of insanity. All along, heretofore, the Mind and the Body
had been conceived as two separate things. People had ceased to believe
in the interference of devils, but they spoke vaguely of “a mind
diseased.” There being often no physical injury that could be detected,
“the common opinion seemed to be confirmed that it” (mental disorder)
“was an incomprehensible, and consequently an incurable, malady of the
mind.”[754]

A medical writer[755] of the early nineteenth century could allude to
lectures he had attended, at which the doctor had declared that
treatment and physic were useless in a case of _furor uterinus_, because
it was a disease of the mind, not of the body. No doubt there loomed the
fear of Free Will and Theology. “... Many very able men,” says Dr.
Halliday,[756] “led away by what appeared to be the general opinion of
mankind, shrank from a strict investigation of a subject that seemed to
lead to a doubt of the immateriality of mind, a truth so evident to
their own feelings and so expressly established by divine revelation.”
It is not for us to turn aside into labyrinths, or to attempt to settle
what “mind” may mean. But we know that, to our present power of
comprehension, the mind can only function through the body. How it first
formed, and if it can yet rekindle, are vital questions which may never
be answered; at any rate they lie beyond our range.

Gradually metaphysics and moral concepts were left behind as experts
examined facts. “... Derangement,” says a nineteenth-century
writer,[757] “is no longer considered a disease of the understanding,
but of the centre of the nervous system, upon the unimpaired condition
of which the exercise of the understanding depends. The brain is at
fault and not the mind.”

“The old notion,” says Dr. Wynter,[758] “that derangement of mind may
happen without any lesion of the instrument of thought being the cause
or consequence, has long been exploded.”

The physical origin of insanity “became gradually accepted. Its mental
phenomena were more carefully observed, and its relation was established
to other mental conditions which had not hitherto been regarded as
insane in the proper sense of the word.... Hitherto the criteria of
insanity had been very rude, and the evidence was generally of a loose
and popular character; but whenever it was fully recognised that
insanity was a disease with which physicians who had studied the subject
were peculiarly conversant, expert evidence obtained increased
importance, and from that time became prominent in every case. The new
medical views of insanity were thus brought into contact with the old
narrow conceptions of the law courts, and a controversy arose in the
field of criminal law, which, in England at least, is not yet
settled.”[759]

The instinct of retaliation was not readily restrained by reasoning or
proofs of irresponsibility. In postulating freedom of choice under all
physical conditions; in assuming plenary responsibility in men and women
under all circumstances; in refusing to recognise any abnormal state
unless it were so extreme and obvious as to render the person before the
court unconscious of his actions and surroundings, the judges were
defending their own position. Thus the new theories[760] were disputed
and sneered at, and arbitrary standards as to sanity were set up at
variance with all facts and expert evidence.[761]

Some contended that the more subtle and amazing forms of madness or
abnormality perceived by the specialists were but new names for old
perversities.[762] Others averred that nothing physical ought to
exculpate. Smollett wished that all lunatics guilty of grave offences
might be subjected “to the common penalties of the law.” Upon this Mr.
Tuke observes in comment that “The entire inability to distinguish
between voluntary and involuntary acts, ... between motives and
consequences, is singularly well shown. Unfortunately it was not
peculiar to Smollett.”[763]

And I might add that this instinctive feeling continued—as everything
instinctive generally does. Turning to the work of a writer still living
(in 1908), we come upon the following: “Of late years a certain school
of thinkers[764] ... have started some theories respecting the
responsibility or irresponsibility of many dangerous criminals and
murderers, which have very properly been objected to by more practical
observers.” And the writer continues with all the sweet simplicity of
ignorance: “Even the inmates of lunatic asylums know well the
distinction between right and wrong. And it is precisely upon this
knowledge that the government and discipline of such establishments are
based. Hence no theories of criminal irresponsibility should be
permitted to relax the security and strictness of the detention of
dangerous offenders, whether sane, or partially insane, or wholly mad.
And it is important to observe that the treatment and condition even of
mad murderers should not be made attractive to others outside.” But the
hard scientific facts persisted. Injustice and cruelty, practised upon
the weak and helpless, do not, alas! and _pace_ good Mrs. Stowe, bring
down upon nations the visible wrath of God; but the manifest falseness
of the old assumptions, and the continued failure of the mediæval
methods, could not be hidden through unending years. Slowly the light of
science began to penetrate into the dark places of punishment. The
entirely mad were first rescued and treated as patients, and these now,
happily, no longer concern us; their case belongs to Medicine, not to
Criminology. With regard to the half-mad we are in a state of slow
change and transition. Their wrongs, long known to the alienists, are
being brought before the law-makers. “Crime,” says the Report of Mr.
Secretary Gladstone’s Committee,[765] “its causes and treatment, has
been the subject of much profound and scientific inquiry. Many of the
problems it presents are practically at the present time insoluble. It
may be true that some criminals are irreclaimable, just as some diseases
are incurable, and in such cases it is not unreasonable to acquiesce in
the theory that criminality is a disease and the result of physical
imperfection. But criminal anthropology as a science is in an embryo
stage....” With regard to the abnormal we are only on the threshold of
justice; a multitude of causes, theological and instinctive, prevent the
facts from being faced and known.

We may take comfort in the course of evolution; in that the violently
mad (employing the word in a wide and general sense) are no longer
exorcised and tormented; in that the eccentrically mad are no longer
burned and tortured for what was imagined against them; in that the
weak-minded and the partially deranged are being considered, with a view
to their segregation in special places apart from healthy offenders; in
that innate and absolute abnormality of emotions has been established by
the specialists upon overwhelming evidence; and that the knowledge of
this is quietly spreading, and being recognised and admitted among
educated people, throughout the civilised world.


                                THE END


           _Printed by_ R. & R. CLARK, LIMITED, _Edinburgh_.


------------------------------------------------------------------------




                       FOOTNOTES FOR ALL CHAPTERS


-----

Footnote 1:

  “In the early cuneiform writing ... the symbol for a prison is a
  combination of the symbols for ‘house’ and ‘darkness.’”—Isaac Taylor,
  _History of the Alphabet_, p. 21. London, 1899.

Footnote 2:

  It has been said that imprisonment is not mentioned in Anglo-Saxon
  laws as a punishment; it is, however, referred to in the laws of
  Æthelstan thus: “For murder let a man forfeit his life, if he will
  deny it and appear guilty at the threefold ordeal let him be 120
  nights in prison; afterwards let his relations take him out and pay
  the king 120 shillings and to his relatives the price of his
  blood....” See J. Johnson, _Ecclesiastical Laws_. London, 1720. The
  same king ordained that “If a thief be brought into prison that he be
  40 days in prison and then let him be released thereout with cxx.
  shillings and let his kindred enter into borh for him that he will
  ever more desist.”—B. Thorpe, _Ancient Laws and Institutions of
  England_, fol. ed. p. 85. London, 1840.

Footnote 3:

  “In the reign of Henry III. imprisonment for a definite period was an
  unknown punishment.”—G. J. Turner, _Select Pleas of the Forest_, p.
  lxv. London, 1901.

Footnote 4:

  “Imprisonment occurs in the Anglo-Saxon Laws only as a means of
  temporary security.”—Pollock and Maitland, _Hist. Eng. Law_, vol. i.
  p. 26. Cambridge, 1895.

Footnote 5:

  “In the nature of the Saxons in the most ancient times there existed
  neither a knowledge of the most high and heavenly King ... nor any
  dignity of honour of any earthly king....”—W. Stubbs, _Const. Hist._
  p. 49. Oxford, 1880.

Footnote 6:

  _Ibid._ p. 75.

Footnote 7:

  “Nihil neque publicae neque privatae rei nisi armati agunt.”—Tac.
  _Germ._ xiii.

Footnote 8:

  Among the Jutes, etc., see J. M. Lappenberg, _Hist. of Eng. under the
  Anglo-Saxon Kings_, i. p. 97. London, 1845. The Anglo-Saxon lad came
  of age at twelve; see work just quoted, p. 173, and J. Thrupp, _The
  Anglo-Saxon Home_, p. 108. London, 1862.

Footnote 9:

  The exceptions to this wise though primitive rule are to be found
  where occasionally “God” and even “Nature” would be cited as injured
  third parties, upon theological grounds. See, for instance, N.
  Marshall, _Penitential Discipline of the Primitive Church_, pp. 49,
  190, Oxford, 1844; and the thirteenth-century _Mirror of Justice_,
  chap. xiv.

Footnote 10:

  “To keep the peace is the legislator’s first object, and it is not
  easy. To force the injured man or the slain man’s kinsfolk to accept a
  money compensation instead of resorting to reprisals is the main aim
  of the law-giver.”—F. W. Maitland, _Constitutional History of
  England_, p. 4. Cambridge, 1908.

Footnote 11:

  Thus in the Laws of the XII. Tables the manifest thief would be killed
  if a slave, or if free become the bondman of the person robbed; if,
  however, he were captured later, he had to refund double the value of
  what he had taken. By the Germanic codes a thief might be instantly
  chased and then hanged or decapitated, but fines for homicide would be
  imposed if he were slain after an interval. Henry Maine, _Ancient
  Law_, ed. of 1906, pp. 387, 388.

Footnote 12:

  For instance, Exodus xxi. 23, 24, 25.

Footnote 13:

  See E. Westermarck, _Moral Ideas_, vol. i. p. 178. London, 1906.

Footnote 14:

  At first it was not always necessary to accept the blood-fine. See E.
  W. Robertson, _Scotland under her Early Kings_, p. 287, Edinburgh,
  1862, on this point; and as to the treatment of female relatives, see
  J. Thrupp, _Anglo-Saxon Home_, p. 151.

Footnote 15:

  In the seventh century a law of Ine ordained that “If any one takes
  revenge before he demands justice, let him give up what he has taken
  to himself and pay the damage done and make bōt with xxx.
  shillings.”—Thorpe, _Ancient Laws and Institutions_, fol. ed. p. 48.

Footnote 16:

  “The penal law of ancient communities is not a law of crimes; it is a
  law of wrongs, or, to use the English technical word, of torts. The
  person injured proceeds against the wrongdoer by an ordinary civil
  action, and recovers compensation in the shape of money damages if he
  succeeds.”—Maine, _Ancient Law_, p. 379.

Footnote 17:

  “It is curious to observe how little the men of primitive times were
  troubled with these scruples (as to the degree of moral guilt to be
  ascribed to the wrongdoer), how completely they were persuaded that
  the impulses of the wronged person were the proper measure of the
  vengeance he was entitled to exact, and how literally they imitated
  the rise and fall of his passions in fixing their scale of
  punishment.”—Maine, _Ancient Law_, p. 389.

Footnote 18:

  “Every man’s life had its value, and according to that valuation the
  value of his oath in a court of justice varied, and offences against
  his person and protection were atoned for.”—Stubbs, _Const. Hist._ i.
  p. 188.

Footnote 19:

  A front tooth usually cost six shillings; in Alfred’s time, eight.

Footnote 20:

  Laws of Æthelbert. If a freeman rob the king let him pay a forfeiture
  ninefold. If a freeman rob a freeman let him make threefold
  satisfaction.—J. Johnson, _Ecc. Laws_.

Footnote 21:

  For a collection of the various codes and for examples of their
  amazing minuteness as to all possible injuries, see F. Lindenbrog,
  _Codex legum antiquarum_, pp. 474, 498, etc. Frankfort, 1613.

Footnote 22:

  The Mercian pound was equal to 60 scillings, the Wessex to 48; see H.
  A. Grueber, _Handbook of the Coins_, p. ix. London, 1899.

Footnote 23:

  Stubbs, _Const. Hist._ i. p. 109.

Footnote 24:

  Thorpe, fol. ed. p. 80.

Footnote 25:

  W. S. Holdsworth, _History of English Law_, p. 13. London, 1903.

Footnote 26:

  J. M. Kemble, _The Saxons in England_, i. p. 149. London, 1876.

Footnote 27:

  R. Ruding, _Annals of the Coinage_, p. 110. London, 1840.

Footnote 28:

  F. W. Maitland, _Domesday Book_, p. 44. Cambridge, 1897.

Footnote 29:

  “It was at least theoretically possible down to the middle of the
  tenth century for a man-slayer to elect to bear the feud of the
  kindred. His own kindred, however, might avoid any share in the feud
  by disclaiming him; any of them who maintained him after this, as well
  as any of the avenging kinsfolk who meddled with any but the actual
  wrongdoer, was deemed a foe to the king.”—Pollock and Maitland,
  _Hist._ ed. of 1898, i. 48.

Footnote 30:

  When a ceorl had been frequently accused, if afterwards he were
  apprehended he might lose a hand or a foot.—Laws of Ine. R Schmidt,
  _Gesetze_, p. 29. Leipzig, 1858.

Footnote 31:

  See Laws of Ine, sect. 12. Thorpe, fol. ed. p. 49.

Footnote 32:

  Pollock and Maitland, _Hist._ i. 476 and ii. 451, ed. of 1898.

Footnote 33:

  J. Thrupp, _Anglo-Saxon Home_, p. 145.

Footnote 34:

  G. G. Coulton, _Chaucer and His England_, p. 293. London, 1908.

Footnote 35:

  Pollock and Maitland, i. 478, ii. 450.

Footnote 36:

  And see _Early Assize Rolls for the County of Northumberland_, pp.
  xviii., xix., etc. Durham, Surtees Society, 1891.

Footnote 37:

  Stubbs, _Const. Hist._ p. 89.

Footnote 38:

  Dooms of Alfred, sect. 24. “If any one steal another’s ox and slay or
  sell it, let him give two for it, and four sheep for one. If he have
  not what he may give be he himself sold for the cattle.”—Thorpe,
  _Laws_, fol. ed. p. 23. Compare Exodus xxii. 3; Pollock and Maitland,
  _Hist._, ed. 1895, vol. ii. 514.

Footnote 39:

  Pollock and Maitland, ii. p. 11.

Footnote 40:

  The intertribal wars at one time “filled the foreign markets with
  English slaves,” says J. R. Green, relating the well-known story of
  Pope Gregory.—_Hist. Eng. People_, i. 37. London, 1881.

Footnote 41:

  Hovenden. H. T. Riley’s ed. i. p. 143. London, 1853.

Footnote 42:

  A vigorous slave trade was carried on just prior to the
  Conquest.—Thrupp, _Anglo-Saxon Home_, p. 130.

Footnote 43:

  Pollock and Maitland, _Hist._ i. p. 12. Cambridge, 1895.

Footnote 44:

  Law of Ine, seventh century. “If any one sell his countryman bound or
  free, though he be guilty, over sea, let him pay for him according to
  his wer.”—Stubbs, _Charters_, p. 61. Oxford, 1884.

  Law of Æthelred. “Christian men and condemned persons are not to be
  sold out of the country, at least not into heathen nations.”—Thorpe,
  fol. ed. p. 135.

  A law of William I. was to the same effect.—R. Schmidt, _Gesetze_, p.
  347.

Footnote 45:

  F. W. Maitland, _Domesday Book_, p. 31.

Footnote 46:

  Æthelbert. “If any one slay a ceorl’s hlf-æta, let him make bōt with
  vi. shillings.”—Thorpe, fol. ed. p. 3.

Footnote 47:

  Thorpe, 8vo ed. i. p. 626.

Footnote 48:

  Thrupp, _Anglo-Saxon Home_, p. 127.

Footnote 49:

  See _Theodori liber poenitentialis_. Thorpe, fol. ed. p. 288.
  _Poenitentiale Ecberti_, lib. ii. 3. Thorpe, p. 368.

Footnote 50:

  Compare Exodus xxi. 20, 21; “And if a man smite his servant, or his
  maid, with a rod, and he die under his hand; he shall be surely
  punished.

  “Notwithstanding, if he continue a day or two, he shall not be
  punished: for he is his money.”

Footnote 51:

  Stubbs, _Const. Hist._ p. 89.

Footnote 52:

  Omne damnum quod servus fecerit, dominus emendet.—Thorpe, fol. ed. p.
  11.

Footnote 53:

  Maitland, _Domesday Book_, p. 32.

Footnote 54:

  Or he might be scourged thrice, _temp._ Æthelstan. See Thorpe, fol.
  ed. p. 88.

Footnote 55:

  Laws of Æthelred. D. Wilkins, _Leges Anglo-Saxonicae_, p. 103. London,
  1721.

Footnote 56:

  By Alfred’s Dooms rape on a ceorl’s female slave was punished by a
  five-shilling bōt to the ceorl; if a theow committed the offence, he
  might be emasculated.—Thorpe, fol. ed. p. 35.

Footnote 57:

  Stubbs, _Const. Hist._ i. p. 25.

Footnote 58:

  Thrupp, _Anglo-Saxon Home_, p. 131.

Footnote 59:

  William Andrews, _Old-Time Punishments_, p. 146. Hull, 1890.

Footnote 60:

  Thrupp, _Anglo-Saxon Home_, p. 144.

Footnote 61:

  E. W. Robertson, _Scotland_, ii. p. 450.

Footnote 62:

  Pollock and Maitland, _Hist._ ed. 1898, ii. p. 450.

Footnote 63:

  See Thorpe, 8vo ed. vol. i. p. 579: “Si quis dominum suum occidet,”
  etc.

Footnote 64:

  F. Lindenbrog, _Codex legum antiquarum_, p. 498.

Footnote 65:

  For similar laws in ancient Wales and eighteenth-century America,
  etc., see Westermarck, _Moral Ideas_, i. p. 518.

Footnote 66:

  “Imprisonment,” say Pollock and Maitland, “would have been regarded in
  those old times as a useless punishment; it does not” (as it was then
  employed and understood) “satisfy revenge, it keeps the criminal idle,
  and do what we may it is costly.”—_Hist. Eng. Law_, ed. of 1895, vol.
  ii. p. 514.

Footnote 67:

  Grant Allen, _Anglo-Saxon Britain_, p. 47.

Footnote 68:

  E. W. Robertson, _Scotland_, p. 295.

Footnote 69:

  Laws of Ine. To fight in the king’s house rendered the offender liable
  to be put to death.—J. Johnson.

  Laws of Alfred. To fight in the presence of an archbishop meant a fine
  of 150 shillings.—Thorpe, p. 32.

  To fight in the house of a common man meant a mulct of thirty
  shillings, and six shillings to the ceorl.—J. Johnson.

Footnote 70:

  Thrupp, _Anglo-Saxon Home_, p. 148.

Footnote 71:

  See example, _temp._ Cnut. Thorpe, fol. ed. p. 174.

Footnote 72:

  J. Johnson, _Ecc. Laws_.

Footnote 73:

  Thorpe, fol. ed. p. 174.

Footnote 74:

  J. Johnson, _Ecc. Laws_.

Footnote 75:

  Thorpe, Laws of Cnut, fol. ed. p. 169.

Footnote 76:

  _Ibid._ p 213.

Footnote 77:

  See _Saxon Chronicle_, J. Ingram’s ed. p. 295. London, 1823.

Footnote 78:

  Stubbs, _Const. Hist._ i. p. 204.

Footnote 79:

  Maitland, _Domesday Book_, p. 33.

Footnote 80:

  Often of death for serious offences, but the prisoner’s goods were
  forfeited for felony; hence it was to the profit of the government to
  have many felonies. See F. W. Maitland, _Const. Hist. Eng._ p. 111,
  and J. Britton, Nichols’ ed. p. 35. Oxford, 1855.

Footnote 81:

  “To them” (the subject people) “a new tribunal seemed only a new
  torment.”—L. O. Pike, _Hist. Crime_, i. 134. London, 1873.

Footnote 82:

  The hundreds were liable to be fined for undetected murders—as
  villages now are in India—and also officers for neglect of duty; see
  T. Madox, _History and Antiquities of the Exchequer_, chap. xiv. p.
  539, etc. London, 1769. J. Britton, F. M. Nichols’ ed. p. 138. This
  liability was abolished in the reign of Edward III.; see W. S.
  Holdsworth, _Hist._ p. 8.

Footnote 83:

  T. Madox, _Hist. Exch._ i. p. 425, etc.

Footnote 84:

  Maitland, _Domesday Book_, p. 52.

Footnote 85:

  _Infangthef_, the right to hang a thief, “hand having and back
  bearing.” _Utfangthef_, the right to punish a thief beyond the
  particular boundary.

Footnote 86:

  Holdsworth, _Hist._ p. ii.; and see Stubbs, _Const. Hist._ i. 452,
  453, etc.

Footnote 87:

  “The lord exercised ... jurisdiction in civil and criminal suits
  which, with all the profits—for in early times the pecuniary interests
  of justice formed no small part of the advantages of judicial
  power—was conferred on him by the original gift.”—Stubbs, _Const.
  Hist._ i. p. 102, and Holdsworth, 13, 14.

Footnote 88:

  See Maitland, _Domesday Book_, p. 33.

Footnote 89:

  _Ibid._ p. 83.

Footnote 90:

  “So intimate is the connection of judicature with finance under the
  Norman kings, that we scarcely need the comment of the historian to
  guide us to the conclusion that it was mainly for the sake of the
  profits that justice was administered at all.”—Stubbs, _Const. Hist._
  i. p. 438.

Footnote 91:

  After Henry II. “a crime is no longer regarded as a matter merely
  between the criminal and those who have directly suffered by his
  crime; it is a wrong against the nation.”—Maitland, _Const. Hist._ p.
  109, ed. of 1898.

Footnote 92:

  L. O. Pike, _History of Crime in England_, i. p. 130.

Footnote 93:

  In the period of the Civil War, however, the barons had made their
  castles robbers’ caves, from which they raided the unhappy English.
  Vide _The Saxon Chronicle_ for the year 1137.

Footnote 94:

  See Stubbs, _Charters_, p. 143.

Footnote 95:

  The expenses for gaols at Canterbury, Rochester, Huntingdon,
  Cambridge, Salisbury, Malmesbury, Aylesbury, and Oxford are detailed
  in the Roll of 1166.

Footnote 96:

  See John Lingard, _Hist. Eng._ ii. p. 619. London, 1849.

Footnote 97:

  Pike, _Hist._ i. p. 130.

Footnote 98:

  “Carcer ad continendos et non ad puniendos habere debeat.”—_De
  Legibus_, lib. iii. cap. vi. f. 105.

Footnote 99:

  F. M. Nichols’ ed. p. 44.

Footnote 100:

  And see 5 Hen. IV. c. 10.

Footnote 101:

  In 1295 a law was passed by which a man should no longer suffer death
  or mutilation for prison-breaking alone, unless his crime would have
  been so punished upon conviction. See statute, De Fragentibus
  Prisonam, 23 Edward I., Record Commission. _Statutes of the Realm_,
  vol. i. London, 1810.

Footnote 102:

  W. J. Whittaker’s ed. p. 52.

Footnote 103:

  In the reign of Henry III. the judges set forth every seven
  years.—Pike, _Hist. Crime_, p. 135; and see G. J. Turner, _Pleas of
  the Forest_, p. xv. By 13 Ed. I. assizes were to be held three times a
  year at most. In the early part of the nineteenth century the gaols in
  the provinces were delivered only twice a year. See Blackstone,
  _Commentaries_, bk. iv. chap. xix.; J. Stewart’s ed. p. 352. London,
  1854. W. Crawford’s remarks in his _Penitentiaries of the United
  States_, p. 37. London, printed for the House of Commons, 1834.

Footnote 104:

  The gaol was his pledge or security that could find (or was allowed)
  none.—Glanville, J. Beames’ ed. pp. 346, 348. London, 1812. For
  details as to who were or who were not replevisable in the thirteenth
  century, see 3 Ed. I. c. 15 and 27 Ed. I. c. 3.

Footnote 105:

  F. M. Nichols’ ed. p. 46.

Footnote 106:

  Fourpence is mentioned as the gaoler’s fee in the _Liber Albus_ (early
  fifteenth century), H. T. Riley’s ed. p. 448. London, 1861.

Footnote 107:

  On this point see F. A. Gasquet, _Henry VIII. and the English
  Monasteries_, p. 4. London, 1906.

Footnote 108:

  Lib. iii. f. 137.

Footnote 109:

  Nichols’ ed. p. 35.

Footnote 110:

  See illustration given in Besant, _Mediæval London_, p. 349. 1906.

Footnote 111:

  “If, however, they refused to plead, they would be pinioned down on
  the bare ground and fed upon bread and dirty water; but they were not
  to eat on the day they drank, or drink on the day they ate,
  etc.”—Nichols’ ed. p. 26.

Footnote 112:

  “Vix permittitur heredibus quod vivant.”—_De Legibus_, lib. iii. f.
  118.

Footnote 113:

  _Temp._ Henry I., see W. Dugdale, _Origines Juridiciales_. London,
  1680.

  Richard, see J. F. Stephen, _Hist. Crim. Law_, i. p. 458. London,
  1883.

  Henry III., see W. Page, _Early Assize Rolls_, p. xviii. etc.

Footnote 114:

  By the Assize of Northampton. See Stubbs, _Const. Hist._ i. p. 545.

Footnote 115:

  2 Hen. III., Carta de Foresta; and also 9 Hen. III. c. 10: “No man
  henceforth shall lose either life or member for killing our deer.”

Footnote 116:

  _Sax. Chron._, Ingram’s ed. p. 266.

  _Ibid._ p. 295.

  _Mirror of Justice_, Whittaker’s ed. p. 141.

Footnote 117:

  J. C. Robertson, _Materials for the History of Thomas Becket_, vol. i.
  p. 156. London, 1875. Referred to by Stephen, _Hist. Crim. Law_, i. p.
  79.

Footnote 118:

  _Hist. Eng. Law_, ii. p. 515.

Footnote 119:

  _Ibid._ ii. p. 516.

Footnote 120:

  For example, a fine of one mark (13_s._ 4_d._) for rape.

Footnote 121:

  See _Mirror of Justice_, Whittaker’s ed., Introduction, pp. xxiv.,
  xxxv., and 1st ed. iii. c. 7.

  Holdsworth, _Hist. Eng. Law_, p. 39.

  W. Page, _Early Assize Rolls_, p. xx.

Footnote 122:

  Of robbery by the judges, see Lingard, _Hist._ ii. p. 217.

Footnote 123:

  For instance, at Northampton in 1323; see Coulton, _Chaucer and his
  England_, p. 284.

Footnote 124:

  Pike, _Hist. Crime_, i. p. 288.

Footnote 125:

  Riley’s ed. p. 448.

Footnote 126:

  See Pike, _Hist. Crime_, i. p. 427.

Footnote 127:

  Maitland, _Const. Hist._ p. 221, ed. 1908.

Footnote 128:

  22 Hen. VIII. c. 9.

Footnote 129:

  W. Besant, _Tudors_, p. 380. London, 1904; and see 25 Hen. VIII. c.
  14.

Footnote 130:

  J. F. Stephen, _Hist. Crim. Law_, p. 477.

Footnote 131:

  A man was boiled to death in 1531; a woman was burnt in 1571, and in
  1575.—Holinshed, _Chron._ pp. 926, 1226, 1262.

Footnote 132:

  Besant, _Tudors_, p. 379.

Footnote 133:

  J. F. Stephen, _Hist. Crim. Law_, p. 468.

Footnote 134:

  Besant, _Tudors_, p. 380.

Footnote 135:

  W. Andrews, _Old-Time Punishments_, p. 92.

Footnote 136:

  Henry Brinklow’s _Complaynt of Roderwyck Mors_, J. M. Cowper’s ed.
  London, E. E. T. Society, 1874.

Footnote 137:

  See Holinshed, _Chronicles_, pp. 1081, 1082.

  J. Wilkes, _Enc. Londinensis_, iii. p. 891. London, 1810.

  E. C. S. Gibson, _Life of John Howard_, p. 47. London, 1901.

Footnote 138:

  See Besant, _Tudors_, p. 387.

Footnote 139:

  39 Eliz. 4 and 5.

Footnote 140:

  7 Jac. I. c. 4.

Footnote 141:

  Departmental Committee on Prisons. _Minutes of Evidence_, Appendix ii.
  p. 457. London, 1895.

Footnote 142:

  As very early in the sixteenth century; see 19 Hen. VII. c. 10.

Footnote 143:

  See John Brown, _John Bunyan, His Life and Times_, pp. 169, 182, etc.

Footnote 144:

  _The West answering the North: Relation of the Sufferings of George
  Fox, Edw. Pyot, and William Salt_, p. 34. Printed 1657.

Footnote 145:

  As to the pits and dungeons of an old English prison, see Charles
  Creighton, _History of the Epidemics in Britain_, p. 386. Cambridge,
  1891.

Footnote 146:

  19 Car. II. c. 4.

Footnote 147:

  _The State of the Prisons_, pp. 8 and 9. Warrington, 1780.

Footnote 148:

  Many prisons had no yards or courts of any kind. See J. B. Bailey,
  _The Condition of the Gaols as described by John Howard_, chap. ii.
  London, 1884.

Footnote 149:

  _Ibid._ p. 16.

Footnote 150:

  See E. F. Du Cane, _Punishment and Prevention of Crime_, chap. iii. p.
  43, etc. London, 1885.

Footnote 151:

  _Hall’s Chronicle_, p. 632, ed. of 1809.

Footnote 152:

  P. 353. London, 1730.

Footnote 153:

  Creighton, _Epidemics_, chap. vii. p. 383.

Footnote 154:

  Vol. ii. p. 48. London, 1827.

Footnote 155:

  _State of the Prisons_, p. 10, ed. of 1780.

Footnote 156:

  _Ibid._ p. 13.

Footnote 157:

  _Ibid._ p. 12.

Footnote 158:

  There were always a few poor creatures who, although sentenced to
  transportation, were left behind to remain in prison, a fate worse
  than exile and perhaps worse than death. See Dept. Com., 1895,
  Appendix, p. 459.

Footnote 159:

  “... Of the 160 offences referred to by Blackstone as punishable by
  death, four-fifths had been made so during the reigns of the first
  three Georges.”—J. A. M. Irvine, _Chambers’s Encyclopædia_, ii. p.
  743, art. “Capital Punishment.” London, 1888.

Footnote 160:

  James Mackintosh, _Miscellaneous Works_, p. 718. Speech on the state
  of the Criminal Law, House of Commons, 2nd March 1819. London, 1851.

Footnote 161:

  “The anecdotes which I have heard of this shameful and injurious
  facility I am almost ashamed to repeat. Mr. Burke once told me that on
  a certain occasion when he was leaving the House one of the messengers
  called him back, and, on his saying that he was going on urgent
  business, replied: ‘Oh, it will not keep you a single moment; it is
  only a capital felony without benefit of clergy.’”—Mackintosh,
  _Miscellaneous Works_, p. 718.

Footnote 162:

  Mackintosh, _Miscellaneous Works_, p. 718.

Footnote 163:

  There grew up, as an eminent judge of those days has declared, “a
  general confederacy of prosecutors, witnesses, counsel, juries,
  judges, and the advisers of the Crown, to prevent the execution of the
  criminal law.”—Sir William Grant, quoted by Mackintosh, p. 719.

Footnote 164:

  Irvine in _Chambers’s Encyclopædia_, ii. p. 743.

Footnote 165:

  Mackintosh, p. 718.

Footnote 166:

  Reprinted in the _Times_, 18th January 1901.

Footnote 167:

  Du Cane, _Crime_, pp. 35, 36.

Footnote 168:

  Howard, _State of the Prisons_, p. 22.

Footnote 169:

  See 8 & 9 Will. III. c. 27, A.D. 1697.

Footnote 170:

  See, for instance, the removal of Governor Bambridge by 2 Geo. II. c.
  32.

  T. Bird, _Letters from the Shades_. London, 1729.

  _Re_ Governor Huggins, etc., see _Report of a Committee of the House
  of Commons_, pp. 25, 26, 27. London, 1729.

Footnote 171:

  Gaol fees were abolished in 1774 by 14 Geo. III. c. 20.

Footnote 172:

  J. M. D. Meiklejohn, _Hist. Eng._ ii. p. 276. London, 1890.

Footnote 173:

  See _The Tryal of William Acton, Deputy-Keeper of the Marshalsea
  Prison_, p. 4, etc. London, 1729.

  And also _Cases in Parliament_, 1684–1737. _British Museum_, 515, l. 5
  (39), _re_ Bambridge, etc.

Footnote 174:

  Howard, p. 17.

Footnote 175:

  _Tryal of Acton_, p. 5.

Footnote 176:

  See Murray, _English Dictionary_, under “Bull,” iv. B.

Footnote 177:

  See _Report of the Committee of 1729_, p. 9. _Brit. Mus. Cat._ 522, m.
  9 (28).

Footnote 178:

  There were seven trials for murder in 1730.—Du Cane, p. 36.

Footnote 179:

  The old-time prisoners depended mainly upon their friends and upon
  outside charity for their sustenance (_vide_ Britton; Bracton, lib.
  iii., etc.). After the reign of Elizabeth they were supposed to
  receive 1_d._ or 2_d._ a day, or seven to eight ounces of bread. (Du
  Cane, p. 40.)

  From 1759, by 32 Geo. II. c. 28, each debtor was ordered to receive
  2_s._ 4_d._ a week from his detaining creditor, but Howard found (p.
  6) that, in practice, they could not get it, and numbers actually
  starved.

Footnote 180:

  By an Act passed in 1784 (24 Geo. III. c. 54) the gaolers were to
  receive payment as compensation for the loss of their former profits
  made out of alcohol, which they were thereby forbidden to sell to
  prisoners from the year 1785.

Footnote 181:

  Howard, p. 16.

Footnote 182:

  _Report of the Committee of 1729_, p. 2.

Footnote 183:

  Howard, p. 5.

Footnote 184:

  Mayhew and Binny, “Criminal Prisons of London” (quoting from the
  _Fifth Annual Report of the Prison Discipline Society_), p. 97.
  London, 1862.

Footnote 185:

  Du Cane, p. 43.

Footnote 186:

  London prisons (_British Museum Catalogue_, 6056, b. 74), bound
  pamphlets, p. x. London, 1789.

Footnote 187:

  Du Cane, p. 41, etc.

Footnote 188:

  E. B. Tylor in _Ency. Brit._ ninth ed. art. “Ordeal.”

Footnote 189:

  For account of the elaborate ritual, see W. Besant, _Mediæval London_,
  vol. ii. chap. vi.

  W. Dugdale, _Origines Juridiciales_, chap. xxix.

Footnote 190:

  Stubbs, _Charters_, p. 71.

Footnote 191:

  Besant, _Mediæval London_, ii. p. 193.

Footnote 192:

  Thorpe, fol. ed. p. 517.

Footnote 193:

  Glanville, J. Beames’ ed. p. 350, note.

Footnote 194:

  Maitland, _Const. Hist._ p. 128.

Footnote 195:

  Reeves, _Hist. Eng. Law_, i. p. 234. London, 1860.

Footnote 196:

  Pike, _Hist. Crime_, p. 131.

Footnote 197:

  Madox, _Hist. Exchequer_, i. p. 546.

Footnote 198:

  _Ency. Brit._ art. “Ordeal,” p. 820, ninth ed.

Footnote 199:

  E. A. Freeman, _History of the Reign of William Rufus_, i. pp. 156,
  157. London, 1882.

Footnote 200:

  P. Labbé, _Sacrorum Conciliorum_, tom. xxii. p. 1007. Venice, 1778.

Footnote 201:

  Stubbs, _Charters_, p. 25.

Footnote 202:

  Stubbs, _Const. Hist._ i. 314.

Footnote 203:

  Unless he went to the ordeal, or, in a later period, to a jury. See W.
  Forsyth, _History of Trial by Jury_, p. 202. London, 1852. Twiss’s
  Bracton, ii. 403.

Footnote 204:

  Peers, on account of their position, and citizens of London, on
  account of their supposably peaceful avocations and by charter, were
  exempt from having to accept a challenge.—Blackstone, _Commentaries_,
  lib. iv.

Footnote 205:

  The loss of certain teeth was looked upon as a handicap—the peasant
  fighters made a horrible use of them. _Vide_ H. C. Lea, _Superstition
  and Force_, p. 131. Philadelphia, 1878.

Footnote 206:

  Lingard, _Hist. Eng._ ii. p. 224.

Footnote 207:

  Reeves, _Hist._ i. p. 61.

Footnote 208:

  Lingard, ii. p. 222.

Footnote 209:

  Besant, _Mediæval London_, ii. p. 198.

Footnote 210:

  _Ibid._ p. 196.

Footnote 211:

  Twiss’s Bracton, ii. p. 405. London, 1879.

Footnote 212:

  Lingard, ii. p. 223.

Footnote 213:

  Lingard, _Hist._ p. 224.

Footnote 214:

  Blackstone, bk. iv., Sharswood’s ed. ii. p. 348. Philadelphia, 1878.

Footnote 215:

  Bracton, Twiss’s ed. p. 405.

Footnote 216:

  It grew to be condemned by the Church. See, for instance, _C.
  Valentinum_, iii. c. 12, held A.D. 855.

Footnote 217:

  Unhappily to be succeeded by a dreadful revival of torture all over
  Europe, where it was in full blast in the fourteenth century, and in
  England from 1468. Having abandoned supernatural means of extracting
  men’s secrets, Church and State made ruthless and pitiless use of more
  material methods. The Inquisition took up torture, and the custom
  spread to the lay courts towards the end of the thirteenth century.
  Consult, for instances, Lea, _Superstition and Force_, pp. 421, 458;
  Maitland, _Const. Hist._ p. 221; Lea, _History of the Inquisition in
  the Middle Ages_, i. p. 423, etc. New York, 1906.

Footnote 218:

  Barnewall and Alderson, _Report of Cases_, i, pp. 405, 426, etc.
  London, 1818.

Footnote 219:

  59 Geo. III. c. 46.

Footnote 220:

  See, for instance, Westermarck, _Moral Ideas_, ii. 628 seq.

Footnote 221:

  J. Bingham, _Antiquities of the Christian Church_, iii. p. 203.
  Oxford, 1855.

Footnote 222:

  _Ibid._ p. 204.

Footnote 223:

  _Ibid._ pp. 205, 217.

Footnote 224:

  _Ibid._ p. 213.

Footnote 225:

  H. H. Milman, _History of Latin Christianity_, ii. p. 59. London,
  1864.

Footnote 226:

  Bingham, iii. pp. 209, 211.

Footnote 227:

  By the Dooms of Alfred there was but a three days’ sanctuary in a
  mynster-ham. A fugitive was not to be dragged from a church for seven
  days, though none were to bring him any food the while.—Thorpe, fol.
  ed. pp. 27, 28, 29. If he delivered up his weapons, however, it
  appears he might dwell in safety for thirty days, while his relations
  were got together to ransom him.—Thorpe, p. 29; Reeves, i. p. 32. On
  this thirty days’ refuge allowed in the early Church, see Bingham,
  iii. p. 207. A deliberate murderer might be plucked from the altar,
  just as by Hebrew law.—Thorpe, p. 27.

Footnote 228:

  _Concilium Aurelianse_, Labbé, tom. viii. p. 350.

Footnote 229:

  J. L. Mosheim, _Ecc. Hist._ i. p. 461. London, 1863.

Footnote 230:

  Migne, _Patrologiae_, tom. 216; “Regni Carraclae,” p. 1255.

Footnote 231:

  Bingham, iii. p. 214.

Footnote 232:

  A. Friedberg (_Decretal Gregor. IX._ lib. iii. tit. xlix. cap. vi.),
  _Decretalium Collectiones_, ii. pp. 655, 656. Leipzig, 1881.

Footnote 233:

  John Johnson, _Ecc. Laws_, quoting Spelman, ii. p. 305.

Footnote 234:

  The Statute 9 Ed. II. c. 10 (1315) is also to this effect.

Footnote 235:

  Besant, _Mediæval London_, p. 201.

Footnote 236:

  Besant, _Mediæval London_, p. 212.

Footnote 237:

  Frequently Dover, where numbers congregated awaiting shipment. See
  Pike, _Hist. Crime_, i. p. 232.

Footnote 238:

  Britton, lib. i. ch. xvii.

Footnote 239:

  And see 9 Ed. II. c. 10: “They that abjure the realm shall be in Peace
  so long as they be in Church or Highway.”

Footnote 240:

  Blackstone, _Commentaries_, bk. iv., Sharswood’s ed. ii. p. 332.
  Philadelphia, 1878.

Footnote 241:

  22 Hen. VIII. c. 14.

Footnote 242:

  As to branding, _vide_ 21 Hen. VIII. c. 2.

Footnote 243:

  A. P. Stanley, _Westminster Abbey_, p. 346. London, 1882.

Footnote 244:

  Besant, _Mediæval London_, p. 202.

Footnote 245:

  _Ibid._ p. 206.

Footnote 246:

  Bingham, iii. p. 215.

Footnote 247:

  Besant, p. 208.

Footnote 248:

  Stanley, p. 346.

Footnote 249:

  Besant, _Mediæval London_, p. 212.

Footnote 250:

  26 Hen. VIII. c. 13.

Footnote 251:

  27 Hen. VIII. c. 19.

Footnote 252:

  32 Hen. VIII. c. 12.

Footnote 253:

  Stanley, p. 352.

Footnote 254:

  1 Jac. I. c. 25, s. 34.

Footnote 255:

  21 Jac. I. c. 28, s. 7.

Footnote 256:

  8 & 9 Will. III. c. 27, s. 15.

Footnote 257:

  9 Geo. I. c. 28.

Footnote 258:

  11 Geo. I. c. 22.

Footnote 259:

  _Ency. Brit._ art. “Wager of Law.”

Footnote 260:

  Lea, _Superstition and Force_, p. 23.

Footnote 261:

  _Ibid._ p. 21.

Footnote 262:

  _C. Valentinum_, iii. c. xi., A.D. 855.

Footnote 263:

  Forsyth, p. 76.

Footnote 264:

  Reeves, _Hist._ i. p. 33.

Footnote 265:

  Holdsworth, _Hist._ i. p. 138.

Footnote 266:

  Reeves, p. 33.

Footnote 267:

  Holdsworth, p. 139.

Footnote 268:

  Lea, _Superstition_, pp. 66, 81.

Footnote 269:

  Holdsworth, _Hist._ i. p. 138.

Footnote 270:

  Lea, p. 35.

Footnote 271:

  _Ibid._ p. 33.

Footnote 272:

  _Ibid._ p. 64.

Footnote 273:

  3 & 4 Will. IV. c. 42, s. 13.

Footnote 274:

  S. Cheetham, _History of the Christian Church during the First Six
  Centuries_, p. 171. London, 1894.

Footnote 275:

  Stubbs, _Const. Hist._ i. p. 267.

Footnote 276:

  1 Corinthians vi.

Footnote 277:

  In A.D. 341 by the eleventh and twelfth Canons of the Council of
  Antioch; in 397 by the ninth Canon of the Third Council of Carthage;
  and in 451 by the ninth Canon of the Council of Chalcedon.

Footnote 278:

  Lingard, _Hist._ ii. p. 120.

Footnote 279:

  Cheetham, p. 171.

Footnote 280:

  H. C. Lea, _History of the Inquisition in the Middle Ages_, i. p. 309.
  New York, 1906.

Footnote 281:

  Canons of Councils, Papal Decrees, and the many Collections.

Footnote 282:

  See Lingard, ii. 126.

  After the appearance of the Collection of Ivo of Chartres (_b._ 1035,
  _d._ 1115),[283] and still more upon the compilation of Gratian’s
  Decretals (A.D. 1151), they began to rival, if not surpass, the
  Secular Courts in reputation and influence.[284] The Courts Christian
  were the defenders of dogma; in those times, without right believing
  nothing else profited. The Church Courts also enforced Christian
  morality. “The bishops,” says Archdeacon Cheetham,[285] “took
  cognizance, as was natural, of matters which were rather offences
  against the moral law than against the State, and sometimes succeeded
  in overawing even high-placed offenders.” “The doctrine of penance,”
  says Mr. Thrupp, “dealt with a series of immoralities which the laws
  disregarded.”[286]

  J. Johnson, _Laws and Canons_, ii. p. 189, note F., ed. 1851.

  N. Marshall, _Penitential Discipline_, p. 136.

Footnote 283:

  Stubbs, _Charters_, p. 136.

Footnote 284:

  Lingard, _Hist._ ii. p. 126.

Footnote 285:

  _History of the Christian Church_, p. 171.

Footnote 286:

  _Anglo-Saxon Home_, p. 254.

Footnote 287:

  Lea, _Inquisition in the Middle Ages_, i. p. 312.

Footnote 288:

  They would be brought before the Court by its apparitors, of whom
  there were many; citations were not to be made through the vicars,
  rectors, or parish priests, lest the secrecy of the confessional
  should become mistrusted and the people cease to confess their
  sins.—_Vide_ Archbishop Stratford, A.D. 1342, _C. Lond._ Can. 8. J.
  Johnson, _Laws and Canons_, ii. p. 371. Chaucer has given us a
  specimen of one of those “moral” agents in his account of the
  _sumptnour_ or _summoner_.

Footnote 289:

  As usual, blackmailing was not infrequently resorted to. _Vide_ H. W.
  C. Davis, _England under Normans and Angevins_, p. 209. London, 1909.

Footnote 290:

  See S. Pegge, _Life of Bishop Grosseteste_, p. 183.

Footnote 291:

  S. Pegge, _Life of Bishop Grosseteste_, p. 46.

Footnote 292:

  Some years later Archbishop Boniface, in his Constitutions, declared
  (17) that the State must not interfere with moral inquisitions. _Vide_
  J. Johnson, _Laws and Canons_, ii. p. 205, ed. 1851; and observe “Note
  on Anselm’s Canons,” p. 28 of the same volume.

Footnote 293:

  The visitations of the archdeacons were highly unpopular, creating any
  number of spies and informers; see _Ecclesiastical Courts Commission_,
  p. xxiv. London, 1883.

Footnote 294:

  1 Cor. vi. 3.

Footnote 295:

  _Ibid._ 2.

Footnote 296:

  Rufinus, _Hist. Ecc._ lib. i. cap. ii. p. 184, ed. of Basel. 1611.

Footnote 297:

  On the packing and intimidating of juries until, as Wolsey observed,
  “they would find Abel guilty for the murder of Cain,” see W. Eden
  (Lord Auckland), _Principles of Penal Law_, p. 176. London, 1771.

Footnote 298:

  H. C. Lea, _Studies in Church History_, p. 171. Philadelphia, 1869.

Footnote 299:

  _C. Agathense_, c. 32.

Footnote 300:

  _C. Epaonense_, c. 11.

Footnote 301:

  The same was also referred to by the eighteenth Canon of the Council
  of Verneuil about 755.

Footnote 302:

  _C. Matisconense_, i. c. 7.

Footnote 303:

  _C. Matisconense_, i. c. 8.

Footnote 304:

  _C. Aurelian_, iii. c. 32.

Footnote 305:

  _C. Parisiense_, v. c. 4.

Footnote 306:

  _Gregor. I._ lib. vi. Epis. xi.

Footnote 307:

  Haddan and Stubbs, _Councils and Ecclesiastical Documents_, i. p. 133.
  _Canones Wallici_, c. 40 (37). Oxford, 1869.

Footnote 308:

  Lea, _Studies_, p. 178.

Footnote 309:

  Lea, _Studies_, p. 179.

Footnote 310:

  _Ibid._ p. 182.

Footnote 311:

  Epis. xcvii. 70. Migne, _Patrologiae_, tom. 119, p. 1006.

Footnote 312:

  _C. Ravennense_, c. 4.

Footnote 313:

  For instance, by Charlemagne in 789 and at the Synod of Bamberg A.D.
  1491; _vide_ Lea, _Studies_, pp. 178, 192, 196.

Footnote 314:

  _Privilegia Clericorum, Constitutio Frederici Imperitoris_, p. iii.
  _B. M. Cat._ i. a. 6515, _Constitutio Caroli_, 1498.

Footnote 315:

  G. H. Pertz, _Monumenta Germaniae Legum_, tom. ii. p. 244. Hanover,
  1837.

  Lea, _Studies_, pp. 191, 196.

Footnote 316:

  _Ibid._ pp. 191, 192.

Footnote 317:

  P. F. Lecourayer, _Histoire du Concile de Trente_, tom. ii. p. 658;
  and see p. 585, etc. 1736.

Footnote 318:

  For post-Tridentine claims, _vide_ Lea, _Studies_, p. 216, etc.

Footnote 319:

  Holdsworth, _Hist. Eng. Law_, iii. p. 253.

Footnote 320:

  Even _insidiatores viarum et depopulatores agrorum_ were ultimately
  allowed clergy by 4 Hen. IV. c. 2, A.D. 1402.

Footnote 321:

  Matthew Hale, _Pleas of the Crown_, ii. p. 333. London, 1800.

Footnote 322:

  Lingard, _Hist._ ii. p. 192, etc.

Footnote 323:

  Holdsworth, i. p. 382.

Footnote 324:

  Lea, _Studies_, pp. 213, 218.

Footnote 325:

  Lingard, ii. p. 127.

Footnote 326:

  D. Rock, _The Church of Our Fathers_, i. p. 144. London, 1903.

Footnote 327:

  J. F. Stephen, _Hist. Crim. Law_, i. p. 461.

Footnote 328:

  A. S. Green, _Henry II._, p. 85. London, 1903.

Footnote 329:

  Lea, _Studies_, pp. 178, 203.

Footnote 330:

  Johnson, _Laws and Canons_, ii. p. 194.

Footnote 331:

  25 Ed. III. c. 4.

Footnote 332:

  J. F. Stephen, _Hist. Crim. Law_, i. p. 461.

Footnote 333:

  Meiklejohn, _Hist. Eng._ vol. i. p. 165. London, 1895.

Footnote 334:

  Lord Auckland, _Principles_, p. 173.

Footnote 335:

  Thomas Smith, _De Republica Anglorum_, Alston’s ed. p. 103. Cambridge,
  1906.

Footnote 336:

  D. Barrington, _Observations on the More Ancient Statutes_, p. 443.

Footnote 337:

  Hale, _Pleas of the Crown_, ii. p. 372.

Footnote 338:

  J. F. Stephen, _Hist. Crim. Law_, i. p. 460.

Footnote 339:

  Pollock and Maitland, _Hist. Eng. Law_, i. p. 426.

Footnote 340:

  W. Stanford, _Plees de Coron._, lib. ii. cap. 48. London, 1560.

Footnote 341:

  Holdsworth, _Hist. Eng. Law_, i. p. 382.

Footnote 342:

  J. F. Stephen, _Hist. Crim. Law_, i. p. 461.

Footnote 343:

  See Bingham, _Antiquities of the Christian Church_, v. p. 459.

Footnote 344:

  _Concilium Tarragonense_, c. 4, A.D. 516.

  _C. Autissiodorense_, c. 34, A.D. 578.

  _C. Toletanum_, xi. c. 6, A.D. 675.

Footnote 345:

  _Excerptiones Ecgberti, Arch. Ebor._ 156.

Footnote 346:

  Johnson, _Laws and Canons_, ii. p. 60.

Footnote 347:

  _C. Lat._ iv. c. 18.

Footnote 348:

  _C. Toletanum_, iv. c. 31, A.D. 633.

Footnote 349:

  _C. Autissiodorense_, c. 33, A.D. 578.

Footnote 350:

  As, for instance, Theodosius, fourth century; Emperor Henry IV.,
  eleventh century; Henry II., twelfth century.

Footnote 351:

  Thrupp, _Anglo-Saxon Home_, p. 238.

Footnote 352:

  _Ibid._ p. 243.

Footnote 353:

  King Æthelwulf, in the ninth century, obtained an ordinance from the
  Pope that no Englishman was to be condemned to make a pilgrimage in
  irons outside his own country.—Lappenburg, _Saxon Kings_, ii. 26. A
  pilgrim from Canterbury would be recognised by his carrying back a
  bottle or a bell; a shell if he had arrived from Santiago de
  Compostela (Spain), and a palm from the Eastern Land.—R. F.
  Littledale, _Ency. Brit._

Footnote 354:

  Thrupp, _Anglo-Saxon Home_, p. 256.

Footnote 355:

  See W. J. Thoms, _Early English Prose Romances_, i. p. 31, etc.
  London, 1858.

Footnote 356:

  Johnson, _Laws and Canons_, ii. p. 449.

Footnote 357:

  So much would depend upon the view taken by the penitentiary. See, for
  instance, Charles Reade’s historical story, _The Cloister and the
  Hearth_.

Footnote 358:

  Usually for half the time, and often for three days in a week for the
  second half. Vide _Pen. Ecgberti, Arch. Ebor._ etc.

Footnote 359:

  Lea, _Studies in Church History_, p. 245.

Footnote 360:

  Thorpe, fol. ed. pp. 280, 315.

Footnote 361:

  See the Penitential of Archbishop Theodore of Canterbury (A.D. 673),
  Thorpe, p. 278.

  In the year 1139 a Council of Lateran condemned murderers of the
  clergy to excommunication, removable by the Pope alone (Labbé, tom.
  xxi. p. 530). Nevertheless we find Archbishop Richard complaining of
  want of protection (Petrus Blesensis, _Opera_, Epistola 73, Giles’s
  ed. i. p. 217, Oxford, 1847; also Hook, _Lives of the Archbishops of
  Canterbury_, ii. p. 577, London, 1862); and Henry II. provided lay
  penalties (Reeves, _Hist. Eng. Law_, i. p. 133; Lingard, _Hist._ ii.
  p. 193; Carte, _Hist._ i. p. 689; C. H. Pearson, _History of England
  during the Early and Middle Ages_, p. 511. London, 1867).

Footnote 362:

  _Vide_ Penitential of Theodore, _De Temperantia Poenitentium_, etc.

Footnote 363:

  Penitential of Ecgberht, Archbishop of York (eighth century), Thorpe,
  p. 377.

  “The common penance for murder” (ninth century) was seven to ten
  years.

Footnote 364:

  J. Johnson, _Laws and Canons_, note E, ii. p. 11.

Footnote 365:

  _C. Ancyranum_, c. 5, A.D. 314.

  _C. Nicaeni_, c. 12, A.D. 325.

  _C. Chalcedonense_, c. 16, A.D. 451.

  _C. Ilerdense_, c. 5, A.D. 524.

Footnote 366:

  For England, see Thorpe, i. p. 278; Johnson, _Laws and Canons_, ii.
  pp. 10, 11, note D.

Footnote 367:

  Johnson, p. 446.

Footnote 368:

  Marshall, _Penitential Discipline_, pp. 109, 110.

Footnote 369:

  The king’s familiar friends and associates were to be received into
  the communion of the Church and were not to be cast out, decreed a
  Council of Toledo.—_C. Toletanum_, xii. c. 3, A.D. 681; Labbé, tom.
  xi. p. 1030; Marshall, _Penitential Discipline_, p. 126.

Footnote 370:

  _C. Clovenhonense_, cc. 26, 27, A.D. 747.

Footnote 371:

  Maitland, _Domesday Book_, p. 281.

Footnote 372:

  St. Ambrose, _De Elia et Jejunio_, c. xx.; Migne, _Patrologiae_, tom.
  xiv. p. 724.

Footnote 373:

  See J. Johnson and B. Thorpe; also Lea, _Middle Ages_, i. pp. 464,
  473.

Footnote 374:

  Carte, _Hist._ i. p. 581. I think it was Herbert Spencer who remarked
  how completely mere outward material performance or conformity could
  generally satisfy the mediæval claims.

Footnote 375:

  5 Rich. II. c. 5, A.D. 1382.

  2 Hen. IV. c. 15, A.D. 1400.

  2 Hen. V. c. 7, A.D. 1414.

Footnote 376:

  _C. Triburiense_, c. 3, A.D. 895.

  Lea, _Studies_, p. 384.

  Stubbs, in Appendix II. _Ecc. Courts Comm._, 1883, pp. 55, 56.

Footnote 377:

  He might even be proceeded against on suspicion of heresy if he
  continued contumelious. See twenty-fifth session of the Council of
  Trent, Lecourayer, tom. ii. pp. 648, 653.

Footnote 378:

  Stubbs, _Const. Hist._ iii. p. 374.

Footnote 379:

  Chaucer, John Saunders’ ed. p. 83. London, 1889.

  “Significavit is a Writ which issues out of the Chancery pon a
  Certificate given by the Ordinary of a man that stands obstinately
  excommunicate by the space of forty days, for the laying him up in
  prison without Bail or Mainprice, until he submit himself to the
  Authority of the Church.” “And it is so called because Significavit is
  an emphatical word in the Writ.”—T. Blount, _Law Dictionary_. London,
  1717.

Footnote 380:

  See A. Abram, _Social England in the Fifteenth Century_, p. 111
  (London, 1909); also _Chancery Warrants for Issue, The Patent Rolls_,
  etc.; J. Johnson, _Laws and Canons_, ii. p. 192, _De Excommunicato
  Capiendo_, and p. 399; Holdsworth, _Hist._ i. pp. 358, 433.

Footnote 381:

  Henry II. of England was severely scourged by eighty ecclesiastics;
  the bishops present gave each five strokes, and every monk gave three.
  The king’s penance brought on illness.—Lea, _Middle Ages_, p. 464;
  Meiklejohn, _Hist._ i. p. 102.

Footnote 382:

  Bingham, _Antiquities of the Christian Church_, vi. p. 172.

Footnote 383:

  Bingham, ii. p. 128.

  I once saw a cell belonging to a Spanish prelate at Majorca; it was a
  little dark lock-up and was untenanted.

Footnote 384:

  For instance, Tinmouth Priory was employed as a prison by the abbots
  of St. Albans. See W. Dugdale, _Monasticum Anglicanum_, iii. p. 309.
  London, 1846.

  Bingham, vii. p. 43.

  Ingulph’s _Chronicle of the Abbey of Croyland_. Riley’s ed. p. 98.

Footnote 385:

  Lea, _Middle Ages_, i. p. 488.

Footnote 386:

  _Ibid._ p. 490.

  Charles Molinier, _L’Inquisition au XIII^e et au XIV^e siècle_, pp.
  435, 440, etc. Paris, 1880.

  _Concilium Albiense_, c. 24, A.D. 1254.

  Lea, _Superstition and Force_, p. 426.

  Findings of the Commission of Cardinals sent by Pope Clement V. in
  1306; see Molinier, p. 450, and B. Hauréau, Bernard Delicieux, p. 134,
  etc. Paris, 1877.

Footnote 387:

  _C. Tolosani_, c. 11.

Footnote 388:

  Lea, _Middle Ages_, i. p. 491.

Footnote 389:

  _C. Biterrense_, c. 23, et _C. Biterrense_, A.D. 1233; _De Custodia
  Claustria_, Labbé, tom. xxiii. p. 275.

Footnote 390:

  Lea, _Middle Ages_, i. p. 487.

Footnote 391:

  Lea, _Middle Ages_, p. 486.

Footnote 392:

  In 1234 a Council of Albi decreed that the holders of confiscated
  property of heretics should make provision for the imprisonment and
  maintenance of its former owners.

Footnote 393:

  For instance, in A.D. 1300 we find certain prisoners at Albi condemned
  “Ad perpetuum carcerem stricti muri ubi panis doloris in cibum et aqua
  tribulationis in potum, in vinculis et cathenis ferreis solummodo
  ministrentur.”—Molinier, p. 94, quoting Doat, tom. xxxv.

Footnote 394:

  “We do with special injunction ordain that every bishop have one or
  two prisons in his bishopric; he is to take care of the sufficient
  largeness and security thereof for the safe keeping of clerks
  according to canonical customs that are flagitious, that is, caught in
  a crime or convicted thereof. And if any clerk be so incorrigibly
  wicked that he must have suffered capital punishment if he had been a
  layman, we adjure such an one to perpetual imprisonment....”—J.
  Johnson, ii. pp. 207, 208; _Constitutions of Archbishop Boniface_,
  A.D. 1261.

Footnote 395:

  Dugdale, _Monasticum Anglicanum_, vi. p. 238.

Footnote 396:

  Lea, _Middle Ages_, p. 487.

Footnote 397:

  James Stephen, _Studies in Ecclesiastical Biography_, p. 38. London,
  1907.

Footnote 398:

  J. W. Willis Bund, _Episcopal Registers_, ii. p. 182. Oxford, 1902.

Footnote 399:

  H. T. Riley, _Gesta Abbatum Monasterii Sancti Albani_, i. p. 266.
  London, 1867.

Footnote 400:

  _History of the Inquisition in the Middle Ages_, i. p. 487 and note;
  and see H. R. Luard, _Annales Monastici_, t. ii. p. 296, t. iii. p.
  76; F. W. Maitland, _Law Quarterly Review_, ii. p. 159.

Footnote 401:

  Bund, _Epis. Registers of the Diocese of Worcester_, ii. p. 189.

Footnote 402:

  Bingham, _Antiquities of the Christian Church_, vii. p. 18.

Footnote 403:

  _Ibid._ p. 12.

Footnote 404:

  Addis and Arnold, _Cath. Dict._ p. 276.

Footnote 405:

  S. Lugio, _Cath. Ency._ iv. p. 678. New York, 1908.

Footnote 406:

  Coulton, _Chaucer and His England_, p. 288.

  Lea, _Studies in Church History_, p. 189.

  “Degradation was a penalty rarely inflicted, since the Church was
  reluctant to admit that the sacred office once conferred could be
  taken away for any offence short of heresy.”—Davis, _Normans and
  Angevins_, p. 207.

Footnote 407:

  Degraded clerks were forbidden to live in the world as laymen by a
  Council of Rouen.—_C. Rothomagense_, c. 12, A.D. 1074.

  Those who threw off their habit were not to be admitted into the army
  or into any convent of clerks, but were to be esteemed
  excommunicate.—Lanfranc’s _Canons_, c. 12, A.D. 1071; J. J. ii. 9.

Footnote 408:

  Lecourayer, _Concile du Trente_, tom. i. p. 543.

Footnote 409:

  Stubbs, _Ecc. Courts Comm._, 1883, Appendix ii. p. 57.

Footnote 410:

  A lay officer was supposed to be present to take over the fallen
  cleric into his custody.—_Cath. Ency._ iv. p. 678.

Footnote 411:

  _C. Remense_, A.D. 1157.

Footnote 412:

  _C. Oxoniense_, A.D. 1166.

Footnote 413:

  _C. Turonense_, A.D. 1163.

Footnote 414:

  2 Hen. IV. c. 15.

Footnote 415:

  Lea, _Hist. Inq. Middle Ages_, i. p. 222.

  A deacon was burned at Oxford in 1222, having been tried before
  Archbishop Langton for embracing Judaism in order to marry a
  Jewess.[418] From that time until 1400 no one is said to have been
  burned to death for heresy in England.—Maitland, _Law Quarterly
  Review_, ii. p. 153. London, 1886.

Footnote 416:

  Professor E. P. Evans throws an interesting side-light on this
  offence. “It seems rather odd,” he observes, “that the Christian
  lawgivers should have adopted the Jewish code against sexual
  intercourse with beasts, and then enlarged it so as to include the
  Jews themselves. The question was gravely discussed by jurists whether
  cohabitation of a Christian with a Jewess, or _vice versa_,
  constitutes sodomy. Damhouder (_Prax. rer. crim._ c. 96, n. 48) is of
  the opinion that it does, and Nicolaus Boër (_Decis_, 136, n. 5) cites
  the case of a certain Johannes Alardus or Jean Alard who kept a Jewess
  in his house in Paris and had several children by her; he was
  convicted of sodomy on account of this relation and burned, together
  with his paramour, ‘since coition with a Jewess is precisely the same
  as if a man should copulate with a dog’ (_Döpl. Theat._ ii. p. 157).
  Damhouder includes Turks and Saracens in the same category.”—_The
  Criminal Prosecution and Capital Punishment of Animals_, p. 152.
  London, 1906.

Footnote 417:

  Lea, _Middle Ages_, i. pp. 220, 221, etc.

Footnote 418:

  A pious old lady left a bequest to the city of London to defray the
  expenses of incinerating misbelievers.—Meiklejohn, _Hist._ i. 223.

Footnote 419:

  W. Stubbs, _Charters_, p. 136.

Footnote 420:

  G. B. Adams, _Political History_, p. 270. London, 1905.

Footnote 421:

  It was represented to him that in the nine years through which he had
  reigned innumerable offences and one hundred murders had been
  committed by clerks who had escaped all punishments save the light
  sentences of fine and imprisonment inflicted by their own courts.—W.
  R. W. Stephens, _The English Church_, p. 165. London, 1901. _William
  of Newburgh_, lib. ii. p. 130, H. C. Hamilton’s ed. London, 1856.

Footnote 422:

  In the thirteenth century there were, for instance, twelve clerks in
  the village of Rougham.—Augustus Jessopp, _Coming of the Friars_, p.
  84. London, 1889. See also J. E. Thorold Rogers, _Six Centuries of
  Work and Wages_, i. pp. 24, 160, 161.

Footnote 423:

  Carte, _Hist._ i. p. 581.

Footnote 424:

  Eirikr Magnusson, _Thomas’ Saga Erkibyskup_, i. p. 144, note.

Footnote 425:

  William FitzStephen; J. C. Robertson’s _Materials for the History of
  Thomas Becket_, iii. p. 45. London, 1881.

  David Hume, _Hist. Eng._ i. p. 391. London, 1818.

Footnote 426:

  See Herbertus de Boseham; Robertson, _Materials_, iii. pp. 264, 265.

Footnote 427:

  Magnusson, _Thomas’ Saga Erkibyskup_, i. p. 145.

Footnote 428:

  William of Canterbury; Robertson’s _Materials_, i. pp. 12, 13.

  Edward Grim; Robertson, ii. p. 375.

  Anonymous; Robertson, iv. p. 24.

  K. Norgate, _England under the Angevin Kings_, ii. p. 21. London,
  1887.

Footnote 429:

  R. de Diceto, _Works_, Stubbs’s ed. i. p. 313. London, 1876.

Footnote 430:

  F. W. Maitland, _Eng. Hist. Rev._ vii. p. 226. London, 1892.

Footnote 431:

  Stephens, _Hist. Eng. Church_, p. 166.

Footnote 432:

  Nahum, i. 9.

Footnote 433:

  Norgate, _Angevin Kings_, ii. p. 23.

Footnote 434:

  Stephens, _Hist. Eng. Church_, p. 166.

Footnote 435:

  Holdsworth, _Hist._ i. p. 382.

Footnote 436:

  Pollock and Maitland, _Hist._ i. p. 442, and note 2, ed. of 1898.

Footnote 437:

  James Gairdner, _The English Church_, p. 42. London, 1902.

Footnote 438:

  Reeves, _Hist. Eng. Law_, iii. p. 41.

Footnote 439:

  If a clerk were accused, the Crown got his goods till he had completed
  purgation, after which they were usually returned (Hale, _Pleas of the
  Crown_, ii. p. 384). If, however, he was delivered over _absque
  purgatione_, or if he had first pleaded guilty, the king retained
  them, and had the produce of his lands for the prisoner’s life.—A. T.
  Carter, _History of English Legal Institutions_, p. 255. London, 1906.

Footnote 440:

  Johnson, _Laws and Canons_, ii. p. 208.

Footnote 441:

  2 Ed. I. c. 2.

Footnote 442:

  4 Ed. I. c. 5.

Footnote 443:

  Following a Canon of the Council of Lyons, A.D. 1274. _C. Lugd._ c. 6.

Footnote 444:

  For other instances of the dislike to remarriage, see Westermarck,
  _Moral Ideas_, ii. pp. 450, 451; and E. S. Hartland, _Primitive
  Paternity_, i. p. 134.

Footnote 445:

  Johnson, _Laws and Canons_, ii. p. 267.

Footnote 446:

  25 Ed. III. c. 4.

Footnote 447:

  See, for instance, a law passed in 1378 (1 Ric. II. c. 15) against
  arresting priests during divine service.

Footnote 448:

  Archbishop Islip’s _Constitutions_, A.D. 1351. Johnson, _Laws and
  Canons_, ii. p. 414, etc.

Footnote 449:

  See, for instance, F. C. Hingeston-Randolph, _Register of John de
  Grandisson, Bishop of Exeter_, Part ii. p. 1118. London, 1897.

Footnote 450:

  For instance, they could not be accused by disreputable persons;
  _vide_ _C. Carthag._ A.D. 390; Labbé, tom. iii. pp. 694, 870; _C.
  Chalced._ c. 21, A.D. 451; Labbé, tom. vi. p. 1229; _C. Trident._ Ses.
  13, c. 7, A.D. 1551. It was complained that the clergy could not be
  accused by the laity and would not accuse each other.—Lea, _Studies in
  Church History_, pp. 208, 211.

Footnote 451:

  For instance, Simon Fish in his _Supplicacyon of Beggars_, written
  about 1529, J. M. Couper’s ed. p. 12. London, 1871.

  Shakespeare, writing of the fifteenth century, refers to the matter:

                          ... You know our king
              Is prisoner to the bishop here, at whose hands
              He hath good usage and great liberty.

              _Third Part of King Henry VI._ iv. 5.

  See also Hook, _Archbishops of Canterbury_, ii. p. 398.

Footnote 452:

  J. C. Robertson, _Materials_, iv. p. 49; _Epist. Nicolaus de Monte_.

Footnote 453:

  Coulton, _Chaucer_, p. 288.

Footnote 454:

  Lea, _Studies in Church History_, p. 196.

Footnote 455:

  Hale, _Pleas of the Crown_, ii. p. 384.

Footnote 456:

  Pollock and Maitland, p. 444, ed. 1898.

  _Ibid._ pp. 427, ed. 1895.

Footnote 457:

  Riley, _Chronica Monasterii S. Albani_, iii. p. 48. See also Britton,
  Nichols’ ed. p. 27.

Footnote 458:

  4 Hen. IV. c. 3.

Footnote 459:

  1 Hen. VII. c. 4.

Footnote 460:

  4 Hen. VII. c. 13.

Footnote 461:

  J. F. Stephen, _Hist. Crim. Law_, i. p. 463.

Footnote 462:

  Holdsworth, _Hist._ i. p. 382.

Footnote 463:

  12 Hen. VII. c. 7.

Footnote 464:

  4 Hen. VIII. c. 2, A.D. 1512.

Footnote 465:

  T. Rymer, _Foedera_, tom. xiv. p. 239. London, 1712.

Footnote 466:

  Lea, _Studies in Church History_, p. 189.

Footnote 467:

  23 Hen. VIII. c. 11.

Footnote 468:

  25 Hen. VIII. c. 3.

Footnote 469:

  28 Hen. VIII. c. 1, s. 7.

Footnote 470:

  “In 1533 unnatural offences, in 1541 witchcraft, were made felonies.
  In 1603 bigamy was made a felony.”—Holdsworth, _Hist._ i. p. 388.

Footnote 471:

  18 Eliz. c. 7.

Footnote 472:

  Special, and moral, prosecutions were carried out through the Court of
  Star Chamber (3 Hen. VII. c. 1) (_vide_ Lingard, _Hist._ vii. p. 377;
  Carter, _Outlines of English Legal History_, p. 101; Hudson, _Treatise
  on the Star Chamber_) and by the hated Court of High Commission (1
  Eliz. c. 1) (see Hale, _Precedents and Proceedings in Criminal Cases_,
  p. 1., and _Ecc. Courts Comm._, 1883, p. xxxviii.), which imposed some
  enormous fines and inflicted various painful penalties, till they,
  with the ecclesiastical courts, were overthrown in the year 1640 (16
  Car. I. c. 10 and 11).

Footnote 473:

  Blackstone, iv. p. 28.

Footnote 474:

  Women received certain allowances by 21 Jac. I. c. 6 in 1623.

Footnote 475:

  10 & 11 Will. III. c. 23.

Footnote 476:

  5 Anne c. 6.

Footnote 477:

  Carter, _Hist. Eng. Legal Inst._ p. 247, ed. 1902.

Footnote 478:

  J. F. Stephen, _Hist. Crim. Law_, i. 463.

Footnote 479:

  4 Geo. I. c. 11.

Footnote 480:

  Holdsworth, _Hist._ p. 383.

Footnote 481:

  J. F. Stephen, _Hist. Crim. Law_, p. 463.

Footnote 482:

  19 Geo. III. c. 74, s. 3.

Footnote 483:

  7 & 8 Geo. IV. c. 28, s. 6, A.D. 1827.

Footnote 484:

  Yet as Professor Menger expressed it, “Nothing can be so unequal as
  the equal treatment of unequals.”

Footnote 485:

  J. F. Stephen, _Hist. Crim. Law_, iii. p. 27.

Footnote 486:

  William Andrews, _Old-Time Punishments_, p. 153.

Footnote 487:

  _Dictionary of National Biography._ There was an Act of Henry VIII.
  which has been called the whip with six strings, which may have some
  reference to the hangman’s usual weapon.

Footnote 488:

  On the old convict ship _Success_.

Footnote 489:

  See Murray, _Dictionary_, vol. iv.

Footnote 490:

  “Hangman, I charge you to pay particular attention to this lady.
  Scourge her soundly, man; scourge her till the blood runs down. It is
  Christmas—a cold time for madam to strip. See that you warm her
  shoulders thoroughly.”—Mr. Justice Jeffreys, quoted in Andrews,
  _Old-Time Punishments_, p. 154.

Footnote 491:

  57 Geo. III. c. 75.

Footnote 492:

  See Statute of Labourers, 25 Ed. III. c. 2.

Footnote 493:

  L. Jewitt, “The Pillory and who they put in it,” _The Reliquary_, i.
  p. 210, April 1861.

Footnote 494:

  Besant, _Tudors_, p. 381.

Footnote 495:

  Andrews, _Old-Time Punishments_, p. 68.

Footnote 496:

  Jewitt, p. 213.

Footnote 497:

  _Ibid._ p. 221.

Footnote 498:

  56 Geo. III. c. 138.

Footnote 499:

  7 Will. IV. and 1 Vict. c. 23.

Footnote 500:

  Besant, _Mediæval London_, p. 354.

Footnote 501:

  J. A. Rees, _The Grocery Trade_, p. 57. London, 1910.

Footnote 502:

  W. Hudson, _Treatise on the Court of Star Chamber_, ii. p. 225.

Footnote 503:

  Lea, _Hist. Inq. Middle Ages_, i. p. 441.

Footnote 504:

  Hudson, _Treatise on the Court of Star Chamber_, p. 225.

Footnote 505:

  James Gairdner, _English Church_, p. 53.

Footnote 506:

  Pike, _Hist._ i. p. 237.

Footnote 507:

  Barrington, _Ancient Statutes_, p. 422.

Footnote 508:

  Andrews, _Old-Time Punishments_, p. 152.

Footnote 509:

  _Ibid._ p. 140.

Footnote 510:

  Jewitt, “Scolds and how they cured them,” _Reliquary_, October 1860.

Footnote 511:

  Andrews, _Old-Time Punishments_, p. 45.

Footnote 512:

  See Jewitt, “A few Notes on Ducking Stools,” _Reliquary_, January
  1861.

Footnote 513:

  Andrews, _Old-Time Punishments_, etc., etc.

Footnote 514:

  Holdsworth, _Hist._ ii. p. 327.

Footnote 515:

  At some of the American lynchings the injured woman applies a match to
  the wood upon which the offending negro is to be burned to death.

Footnote 516:

  “They died alone and unpitied,” says Lecky; “... their very kinsmen
  shrank from them as tainted and accursed.”—_History of Rationalism_,
  p. 149. London, 1865.

Footnote 517:

  Meetings of a more or less bacchanalian character really took place in
  Europe through the middle ages, survivals of old rites and
  nature-worship. See Professor Karl Pearson’s long and learned account
  of these in _The Chances of Death_. London, 1897.

Footnote 518:

  These were often domestic pets or animals about the yard. Even feeding
  the sparrows on the winter snow would have been dangerous for a
  suspected person. See kind of evidence sought for by R. Bernard in his
  _Guide to Grand Jurymen_, p. 235. London, 1627, etc. The miserable
  witches, in the agony of sleeplessness and torment, ultimately doing
  or saying anything that was already expected of them. See, for
  instance, F. Hutchinson, _An Historical Essay concerning Witchcraft_,
  pp. 37, 57. London, 1718.

Footnote 519:

  On the power of suggestion and imagination, see, for instance, G. le
  Bon, _Revue scientifique_, March 26 and April 2, 1910.

Footnote 520:

  The whole hideous and devilish procedure is given by J. Sprenger and
  H. Institor in their _Malleus Malificarum_, about 1485–89. Frankfort
  ed., 1580.

  Paulus Grillandus, _De sortilegiis_, lib. 4, _De questionibus et
  tortura_. Lyons, 1533.

  J. Bodin, _De la démonomanie des sorciers_. Paris, 1580.

  R. Scot, _The Discoverie of Witchcraft_. London, 1584. B. Nicholson’s
  edition. London, 1886.

  H. Boguet, _Discours des sorciers_. Lyons, 1608.

Footnote 521:

  Esquirol gives this as a symptom in some forms of insanity. See E. K.
  Hunt’s translation of _Mental Maladies_, p. 245. Philadelphia, 1845.

  R. Scot, _Descoverie Booke_, ii. chaps, v.–viii.

  Bodin, _Démonomanie_, p. 170.

  James I., _Daemonologie_, p. 81.

  H. Boguet, chap. xlvi.

Footnote 522:

  _The Cenci._

Footnote 523:

  _Historical Essay_, p. 139.

Footnote 524:

  See J. P. Migne, _Encyclopédie théologique_, vol. xlix. tome second,
  p. 72. Paris, 1848.

  Charles Mackay has observed: “It was no unusual thing then, nor is it
  now, that in aged persons there should be some spot on the body
  totally devoid of feeling,” p. 137. In Scotland there were a number of
  witch-finders who were known as “common prickers,” p. 146.—_Popular
  Delusions_, London, 1869.

Footnote 525:

  Michael Dalton, _The Countrey Justice_, p. 242. London, 1618.

  James I., _Daemonologie_, p. 80.

  Matthew Hopkins quoted, p. 33, _ante_.

  _Sinistrari of Ameno Demoniality_, p. 27. J. Liseux, trans. Paris,
  1879.

  D. Neal, _History of New England_, p. 137. London, 1747.

Footnote 526:

  Hutchinson, _Essay_, p. 138.

Footnote 527:

  T. Wright, _Dame Alice Kyteler_, London, Camden Society, vol. xxiv.,
  1843.

Footnote 528:

  H. L. Stephen, _State Trials_, vol. i. p. 211. London, 1899.

Footnote 529:

  Hutchinson, p. 34.

Footnote 530:

  See long and interesting essay on witchcraft in the _Ency. Brit._
  ninth ed.

Footnote 531:

  The Act is quoted at length in R. Royston’s _Advertisement to Jurymen
  of England_, in which he criticises del Rio’s and Perkins’ “proofs.”

Footnote 532:

  Alluded to by Cotton Mather, _The Wonders of the Invisible World_.
  Boston, 1693.

Footnote 533:

  James Williams, _Ency. Brit._ ninth ed. vol. xxiv. p. 622. Kincaid was
  one of the “common prickers” or professional finders, who in those
  superstitious times were numerous.

Footnote 534:

  For instance, Michael Dalton, _The Countrey Justice_, p. 242; Richard
  Bernard, _A Guide to Grand Jurymen_, p. 240.

Footnote 535:

  Whether the story of his immersion is true or not, he undoubtedly died
  despised and discredited.

Footnote 536:

  _Hudibras_, Part iii. chap. iii.

Footnote 537:

  Coming down, may be, from the prehistoric mother cult. See Karl
  Pearson, Woman as Witch in his _Chances of Death_.

Footnote 538:

  Exorcism, etc. Paul Regnard, _Les Maladies épidémiques de l’esprit_,
  is full of engravings of old pictures illustrating the point. Paris,
  1887.

Footnote 539:

  Although the Popes, such as John XXII., Innocent VIII., Julius II.,
  and Adrian VI., legislated on witches, the Protestants were quite as
  vindictive. See, for instance, J. Michelet, _Life of Luther_, bk. v.
  chap. vi.: “The crazed, the halt, the blind, and the dumb are all
  possessed with demons. Physicians who treat these infirmities as
  arising from natural causes are fools who know not the power of the
  devil.” We shall deal later with the works of Puritan divines in
  England and America.

Footnote 540:

  Chapters xi., xiv., etc.; French edition of 1579.

Footnote 541:

  This theory was advanced by George Gifford in _A discourse of the
  subtill practices of Devilles by witches and sorcerers_, etc. London,
  1587.

Footnote 542:

  _A dialogue concerning witches and witchcraft. In which is laid open
  how craftily the Devill deceiveth not only the witches but many
  others._ London, 1603. And by John Webster, who was sceptical of the
  miraculous in his _Displaying of supposed Witchcraft_, 1677.

Footnote 543:

  In 1609 a terrible commission scourged the regions round Bordeaux and
  Labourt in Western France. See P. de l’Ancre, _Tableau de
  l’inconstance den Mauvais Anges_, 1612. Under Louis XIV. the lurid
  _Chambre Ardente_ was set up in 1679, and lasted till 1682. La Reynie,
  the Lieutenant-General of Police, was an active inquisitor. See F.
  Funck-Brentano, _Princes and Poisoners_; G. Maidment, trans. London,
  1901.

Footnote 544:

  _Cautio Criminalis_, 1631.

Footnote 545:

  _Saducisimis Triumphatus_, 1681.

Footnote 546:

  In Dutch, 1681; French translation, _Le Monde enchanté_. Amsterdam,
  1684.

Footnote 547:

  _The Certainty of the World of Spirits._ London, 1691.

Footnote 548:

  _The Wonders of the Invisible World: Observations upon the Nature, the
  Number, and the Operations of the Devils._

Footnote 549:

  R. Calef, _More Wonders of the Invisible World_. London, 1700.

Footnote 550:

  D. Neal, _History of New England_.—“The prisons were hardly able to
  hold the number of the accused.”

Footnote 551:

  As it did as late as 1861, round the little village of Morzines in
  Savoy; see A Constans, _Une Relation sur une épidémie
  d’hystério-démonopathie_. Paris, 1863.

  Dr. R. Madden gives a long account of various historical outbreaks in
  his _Phantasmata_, chap. x. “Maniacal Epidemics, etc.” London, 1857.

  E. Pronier, _Étude sur la contagion de la Folie._ Lausanne, 1892.

  L. F. Calmeil, _De la Folie_. Paris, 1845.

Footnote 552:

  _An Historical Essay concerning Witchcraft._

Footnote 553:

  Lecky, _History of Rationalism_.

Footnote 554:

  One mediæval writer was said to have estimated the exact number of the
  various devils, which he stated as 7,405,926; see Jules Garinet,
  _Histoire de la Magie_, p. xxviii. Paris, 1818. Another declared that
  there were six principal genera of demons; R. Madden, _Phantasmata_,
  p. 293. Another author puts the devils at 2,665,866,746,664; see P.
  Carus, _History of the Devil_, p. 346. London, 1900.

Footnote 555:

  “Quae quidam nefandissima opera si non vere fierent, sed delusoria,
  vane contra ea fuissent promulgatae leges et in legum ipsarum
  auctores, etiā in ipsum Deum, ista retorqueretur vanitas; quod extrema
  blasphemia est.”—B. de Spina, _Quaestio de strigibus_, p. 8. Rome,
  1576.

Footnote 556:

  _Sortilège_, p. 599. Paris, 1622.

Footnote 557:

  _A Tryall of Witches, 10th March 1664_, Sir Matthew Hale, Kt. Appendix
  by C. Clark, p. 20. London, 1838.

Footnote 558:

  _State Trials_, i.

Footnote 559:

  _Saducismus Triumphatus._

Footnote 560:

  The Roman Catholic view of sorcery and evil spirits is treated at
  length by R. R. Madden, _Phantasmata_, chap. ix.

Footnote 561:

  A. Chalmers, _Biographical Dict._ art. “Cotton Mather.” London, 1815.

Footnote 562:

  “We cannot help lamenting that a sect among us looks upon the
  abolition of the penal statute against witchcraft not only as an evil
  but as a sin.... The Seceders published an Act ... in 1743 (reprinted
  at Glasgow, 1766). In this Act is contained the annual confession of
  sins.... Among the sins national and personal there confessed are ...
  (that) the penal statutes against witchcraft have been repealed by
  Parliament, contrary to the express law of God.”—H. Arnot, _Criminal
  Trials in Scotland_, p. 370. Edinburgh, 1785.

Footnote 563:

  Lecky, _History of Rationalism_, p. 134.

Footnote 564:

  _Arminian Magazine_, v. p. 366. London, 1782.

Footnote 565:

  Dr. H. More employed the same argument in his _Antidote against
  Atheism_, lib. iii. chap. ii. London, 1653.

Footnote 566:

  _Lay Sermons._ London, 1870.

Footnote 567:

  H. L. Stephen, _State Trials_.

Footnote 568:

  _History of Rationalism_, chap. i.

Footnote 569:

  J. Williams, _Ency. Brit._, ninth ed. art. “Witchcraft.”

Footnote 570:

  Mackay, _Delusions_, pp. 184, 187, etc.

Footnote 571:

  _History of Rationalism_, p. 4, etc.

Footnote 572:

  See article on the case by E. F. Benson, _Nineteenth Century_, vol.
  xxxvii. June 1895. A somewhat similar case occurred at Tarbes in
  1850.—_History of Rationalism_, p. 4.

Footnote 573:

  “What sort of distemper ’tis shall stick the body full of
  pins?”—Quoted by Calef, _More Wonders_, p. 5.

Footnote 574:

  Scot quotes a ghastly passage from Grillandus, who writeth “that when
  witches sleepe and feel no paine upon the torture, _Domine labia mea
  aperies_ should be said, and so, saith he, both the torment will be
  felt and the truth will be uttered.—_Discoverie of Witchcraft_, p. 17.
  And we find in del Rio: “Narravit mihi ... anno 1599 captam puellulam
  strigatricem, quae nec pedum ustulationem saevissimam, nec flagra
  validissima sentiebat; donec Sacerdos cujusdam monitu illi Agni
  benedicti ceream imaginem in collum injecere, tum enim vi sacra
  amuleti daemonis praestigiosa ludibria depulsa et illa vim doloris
  coepit persentiscere.”—_Disquisitionum magicarum_, p. 184. Venice,
  1616. See also E. Gurney, _Phantasms of the Living_, p. 181, who
  considers the insensibility to pain may have been due sometimes to
  auto-hynotism.

Footnote 575:

  Mentioned, for instance, in _Twelfth Night_.

Footnote 576:

  Les sorcières furent les sages-femmes et les sorciers les médecins du
  moyen âge.—P. Christian, _Histoire de la magie_, p. 400. Paris, ?
  1871.

Footnote 577:

  E. Gurney, _Phantasms of the Living_, p. 183.

Footnote 578:

  Lecky, _History of Rationalism_, p. 77.

Footnote 579:

  R. Calef, the opponent of Cotton Mather, quotes an instance of this
  kind. One Margaret Rule, having been seized with fits, “... some of
  the neighbours were forward enough to suspect the rise of the mischief
  in a house hard by, where lived a Miserable Woman who had been
  formerly imprisoned on the suspicion of witchcraft, who had frequently
  cured very painful hurts by muttering over them certain charms which I
  [? C. M.] shall not endanger the Poysoning of my Reader by
  repeating.”—_More Wonders of the Invisible World_, p. 3. Boston, 1700.

Footnote 580:

  See O. M. Hueffer, _The Book of Witches_. London, 1908.

Footnote 581:

  See action of Richard III.

Footnote 582:

  The full indictment against Lord Hungerford, who was beheaded on Tower
  Hill along with Thomas Cromwell, by Henry VIII.

Footnote 583:

  P. de l’Ancre, _Seconde Considération_. As to the kind of offences
  “qui se trouvent enveloppés dans le sortilège,” _Tableau de
  l’inconstance des Mauvais Anges_. Paris, 1612.

Footnote 584:

  J. Bodin, _Démonologie_, p. 60. Paris, 1580.

Footnote 585:

  Shamanism, etc. See, for instance, Elie Reclus, _Primitive Folk_, pp.
  68, 70. London, 1889.

Footnote 586:

  The most tainted or prejudiced evidence was received in these kinds of
  cases. See _Concilium Biterrense_ of A.D. 1246, c. 12. Labbé, tom.
  xxiii. p. 718.

Footnote 587:

  Scot, _Discoverie_, bk. i. chap. iii.

Footnote 588:

  Mostly poor, miserable old women, Glanvil admits.—_Saducismus_, p. 29.

Footnote 589:

  “None ever talked to themselves who were not witches,” asserted one of
  the common prickers.—Mackay, _Delusions_, p. 147.

Footnote 590:

  Especially as they often pretended, or really believed in, powers and
  curses, and, being quite helpless on the material side, invoked the
  aid of supernatural terrors to get assistance and be looked upon with
  fear.

Footnote 591:

  Various persons accused of witchcraft, says Boguet, “ont confessé
  qu’ils faisoient la gresle en Sabbat afin de gaster les fruicts de la
  terre.”—_Discours des sorciers_, p. 144. Storms were supposed to be
  occasioned by the devils. “Telle est l’origine de l’habitude de sonner
  les cloches pendant les orages.”—L. F. A. Maury, _La Magie_, p. 102.
  Paris, 1860.

Footnote 592:

  Bodin, _Démonologie_, p. 171.

Footnote 593:

  Scot, _Discoverie_, p. 17. And this was also practised on a prisoner
  accused of sorcery before James I.—Lecky, _History of Rationalism_, p.
  114.

Footnote 594:

  One of the early inquirers as to the witch trials took a friend in
  with him to witness a torturing. As an experiment, he asked the
  prisoner if his companion, an entire stranger, had not been one of her
  accomplices, and the poor creature moaned out that he had.

Footnote 595:

  “Le diable est si bon maistre que nous n’en pouvons envoyer si grand
  nombre au feu, que de leurs cendres il n’en renaisse de nouveau
  d’autres.”—Florimonde de Raemond, _Antichrist_, p. 103. Lyons, 1597.

Footnote 596:

  It became a common prayer with women of the humbler class that they
  might not live to be old. It was sufficient to be aged, poor, or
  half-crazed to ensure death at the stake or on the scaffold.—Mackay,
  _Delusions_, p. 116.

Footnote 597:

  _History of Rationalism_, p. 3.

Footnote 598:

  Mackay, _Delusions_, p. 159.

Footnote 599:

  Lecky, _History of Rationalism_, p. 4.

Footnote 600:

  Quoted by W. B. Gerish, _A Hertfordshire Witch_. London, 1906.

Footnote 601:

  Mackay, _Delusions_, p. 139.

Footnote 602:

  H. C. Lea, _History of the Inquisition in Spain_. New York, 1907.

Footnote 603:

  W. F. Poole, _Salem Witchcraft_. Boston, 1869.

Footnote 604:

  300,000 women are said to have been slaughtered since Innocent’s Bull
  of 1484. See an important article in _Chamber’s Encyclopædia_, x. p.
  698, ed. of 1901.

Footnote 605:

  F. de Raemond, _L’Antichrist_, p. 102.

  One writer estimated the number of sorcerers living in Europe at
  1,800,000. See Calmeil, tom. i. p. 217.

Footnote 606:

  James Howell, _Familiar Letters_, 1688.

Footnote 607:

  Scot, _Discoverie_, p. 16.

Footnote 608:

  _Ency. Brit._ ninth ed. vol. xxiv. p. 622.

Footnote 609:

  “On the enactment of the statute to repeal the law, vanished all those
  imaginary powers so absurdly attributed to old women oppressed with
  age and poverty.”—H. Arnot, _Criminal Trials_, p. 369.

Footnote 610:

  The late Mr. Gurney, of the Psychical Research Society, found, after a
  most extensive investigation, “a total absence of respectable
  evidence, and an almost total absence of any first-hand evidence at
  all, for those phenomena of magic and witchcraft which cannot be
  accounted for as the results of diseased imagination, hysteria,
  hypnotism, and occasionally, perhaps, telepathy.”—_Phantasms of the
  Living_, i. p. 172.

Footnote 611:

  See E. B. Tylor, _Primitive Culture_, ii. p. 130.

Footnote 612:

  J. B. Tuke in the _Ency. Brit._

Footnote 613:

  E. Westermarck, _The Origin and Development of the Moral Ideas_, i. p.
  269.

Footnote 614:

  Westermarck, _Moral Ideas_, i. p. 270.

Footnote 615:

  E. B. Tylor, _Primitive Culture_, ii. p. 117.

Footnote 616:

  See, for instance, the story called “The Sleeper Awakened” in the
  _Arabian Nights_.

Footnote 617:

  The severities to which the insane were subjected by various tribes
  are mentioned by Westermarck in _Moral Ideas_, i. p. 271.

Footnote 618:

  John Conolly, _Treatment of the Insane_, p. 4. London, 1856.

Footnote 619:

  F. Beach, _Psychology in John Hunter’s Time_; “they served as a sport
  to visitors at assizes, fairs, and other times,” p. 4. Hunterian
  Oration. London, 1891.

Footnote 620:

  For an account of these wandering Tom o’ Bedlams, see Isaac D’Israeli,
  _Curiosities of Literature_, ii. p. 343. London, 1849.

Footnote 621:

  “Come, march to wakes and fairs and market-town. Poor Tom, thy horn is
  dry.”—_Lear_, iii. 6.

Footnote 622:

  _Lear_, iii. 4.

Footnote 623:

  Walter Besant, _London in the Eighteenth Century_, p. 378. London,
  1902.

Footnote 624:

  This lasted right into the nineteenth century; see D. H. Tuke,
  _Chapters in the History of the Insane_, p. 128. London, 1882.

Footnote 625:

  See, for instance, W. Besant, _London in the Time of the Stuarts_, p.
  236. London, 1903. And for a particularly filthy mixture advised “For
  a man haunted by apparitions,” Cockayne, i. p. 365.

Footnote 626:

  Oswald Cockayne, _Leechdoms, Wort Gunning, and Starcraft_, pp. 361,
  365. London, 1864.

Footnote 627:

  Cockayne, pp. 101, 161, 169.

Footnote 628:

  Cockayne, i. p. 249.

Footnote 629:

  Tylor, _Primitive Culture_, ii. p. 127.

Footnote 630:

  Joseph Bingham, _Antiquities of the Christian Church_, i. p. 322.

Footnote 631:

  Bingham, p. 323.

Footnote 632:

  F. A. Gasquet, _Henry VIII. and the English Monasteries_, p. 463.

Footnote 633:

  There were, says Maury, “de véritables litanies d’anathèmes contre
  Satan.”—_La Magie_, p. 319.

Footnote 634:

  J. Bingham, _Antiquities of the Christian Church_, i. p. 321. See also
  Paul Verdun, _Le Diable dans la vie des saints_, p. 2; _Ency. Brit._
  ninth ed. vol. viii. p. 806.

Footnote 635:

  “The so-called Fourth Council of Carthage (anno 396) prescribes a form
  for the ordination of exorcists the same in substance as that given in
  the Roman Pontifical, and used at this day.”—Addis and Arnold,
  _Catholic Dictionary_, art. “Exorcism.” London, 1903.

  A man who was said to have been possessed by seven devils was
  exorcised by seven clergymen at the Temple Church, Bristol, in
  1788.—Tylor, _Primitive Culture_, ii. p. 128. See also L. A. Maury,
  _La Magie_, p. 331.

Footnote 636:

  Already in the fifth century Pope Innocent I. forbade the exorcists
  from exercising their ministry without the express permission of the
  bishop, and that order is in force. See also Louis Duchesne,
  _Christian Worship_, M. L. Maclure’s trans. p. 349. London, 1904.

Footnote 637:

  Addis and Arnold, _Cath. Dict._ p. 444.

Footnote 638:

  Or this prayer of Pope Leo XIII.; “S. Michel Archange ... repoussez en
  enfer par la vertu divine Satan, et les autres esprits mauvais, qui
  errent dans le monde cherchant des âmes à perdre.” Quoted by P.
  Verdun, ii. p. 314.

Footnote 639:

  D. H. Tuke, _Hist. Insane_, p. 14.

Footnote 640:

  F. Beach, _Psychology in John Hunter’s Time_, p. 2.

Footnote 641:

  L. A. Maury, _La Magie_, p. 329.

Footnote 642:

  Cockayne, _Leechdoms_, ii. bk. iii. p. 335.

Footnote 643:

  W. A. F. Browne, _What Asylums were, are, and ought to be_, p. 101.
  Edinburgh, 1837.

Footnote 644:

  See Tylor, _Primitive Culture_, i. p. 258.

  R. Routledge, _Hist. Science_, p. 5. London, 1881.

  Edward Carpenter, _The Art of Creation_, p. 36. London, 1904.

Footnote 645:

  It may be interesting to compare 1 Kings xxii. 20.

  John Lubbock (Lord Avebury), _Origin of Civilisation_, p. 32. London,
  1889.

Footnote 646:

  Certain savages mentioned by Tylor endeavoured to stay the progress of
  small-pox germs after this fashion.—_Primitive Culture_, ii. p. 115.

Footnote 647:

  See, for instance, Abbot Richalmus, _Liber revelationum de insidiis et
  versutiis daemonum inversus homines_.

Footnote 648:

  “... but as I knew it was the Devil,” wrote Luther, “I paid no
  attention to him and went to sleep.”

Footnote 649:

  _Primitive Culture_, i. p. 409.

Footnote 650:

  E. B. Tylor, _Ency. Brit._ ninth ed. vol. vii. p. 63, etc.

Footnote 651:

  Cheyne and Black, _Ency. Bib._ art. “Satan,” by Gray and Massie.

  F. T. Hall, _The Pedigree of the Devil_. London, 1883.

  J. Tulloch in _Ency. Brit._ ninth ed. art. “Devil.”

Footnote 652:

  Satan, said Tertullian, is God’s ape. He was indeed supposed to
  possess a tail; this might be severed, but it would grow again.

Footnote 653:

  A. Reville, _The Devil_, pp. 40, 42. London, 1871.

Footnote 654:

  L. W. Cushman, _The Devil and the Vice_. London, 1897.

Footnote 655:

  Tylor, _Primitive Culture_, p. 77.

Footnote 656:

  P. Verdun, _Le Diable dans la vie des saints_, p. 97.

Footnote 657:

  S. Baring Gould, _Lives of the Saints_, v. p. 278. London, 1897.

Footnote 658:

  P. Carus, _The History of the Devil_, pp. 255, 256. London, 1900.

Footnote 659:

  John Ashton, _The Devil in Britain and America_, p. 87. London, 1896.

Footnote 660:

  Carus, _The History of the Devil_, p. 343.

Footnote 661:

  R. Burton, _Anatomy of Melancholy_, Pt. i. sec. ii. p. 57, ed. 1806.

Footnote 662:

  Maury, _La Magie_, p. 310.

Footnote 663:

  The same idea is found among many savages. In a certain tribe referred
  to by Dr. Tylor, “The dancing of women by demoniacal possession is
  treated ... by the doctor thrashing them soundly with a stick, the
  demon, and not the patient, being considered to feel the
  blows.”—_Primitive Culture_, ii. p. 124.

Footnote 664:

  See, for instance. Abbot Richalmus, capud xxvi. _De efficacia salis et
  aquae_.

Footnote 665:

  D. H. Tuke, _History of the Insane_, p. 21.

Footnote 666:

  In many ancient drawings they are depicted blown from the mouth,
  little black monsters mingled in a cloud; there were other manners of
  egress.

Footnote 667:

  _The Scarlet Letter_, chap. iv.

Footnote 668:

  The people even of those early days, say Maury, “bien qu’attribuant la
  folie à une cause imaginaire n’en avaient pas moins connu que c’était
  une véritable maladie.”—_La Magie_, p. 309.

Footnote 669:

  Chap. xxxvii. London, 1542.

Footnote 670:

  _Twelfth Night_, Act iii. Sc. 4.

Footnote 671:

  W. Besant, _London in the Eighteenth Century_, p. 536.

Footnote 672:

  W. E. H. Lecky, _History of England in the Eighteenth Century_, vi. p.
  257. London, 1887.

Footnote 673:

  Andrew Halliday, _Lunatic Asylums_, p. 10. London, 1828.

Footnote 674:

  W. A. F. Browne, _What Asylums were_, p. 105.

Footnote 675:

  J. Conolly, _Treatment of the Insane_, p. 7.

Footnote 676:

  See M. Esquirol, _Mémoire sur la Maison Royale de Charenton_, p. 10.

Footnote 677:

  D. H. Tuke, _Hist._ p. 52.

Footnote 678:

  W. Besant, _London in the Time of the Stuarts_, p. 237.

Footnote 679:

  J. B. Tuke, art. “Insanity,” _Ency. Brit._ ninth ed.

Footnote 680:

  Many asylums were built under the Act of 1808, but before that the
  pauper patients had been “crowded into the damp dungeons of our public
  workhouses, or shut up in houses of detention and ill-regulated
  prisons.”—A. Halliday, _Lunatic Asylums_, p. 10.

Footnote 681:

  _Treatment of the Insane._

Footnote 682:

  Oscar Wilde, _Ballad of Reading Gaol_, p. 24.

Footnote 683:

  Robert Jones, _An Inquiry into the Nature of Nervous Fevers_. London,
  1785.

Footnote 684:

  W. Cullen, _First Lines of the Practice of Physic_, iv. p. 153.
  Edinburgh, 1789.

Footnote 685:

  Cullen, p. 171.

Footnote 686:

  _Ibid._ p. 164.

  See also R. Mead, _Monita et praecepta medica_, p. 67; he says,
  however, that fast binding is sufficient. London, 1751.

Footnote 687:

  Page 149, _ante_. Dr. Haslam flogged lunatics at stated periods to
  avert outbreaks.—Conolly, p. 12.

Footnote 688:

  D. H. Tuke, _Hist._ p. 107.

  F. Beach, _Psychological Medicine_. He also alludes to John Wesley’s
  _Prescriptions_, p. 6, etc.

  Andrew Wynter, _The Borderland of Insanity_, J. M. Granville’s ed. p.
  70. London, 1877.

Footnote 689:

  “The vagrant action of the limbs was suppressed, but the source of
  irritation in the brain was left out of consideration.”—Conolly.

Footnote 690:

  Quoted by Beach, Hunterian Oration, 1891.

Footnote 691:

  W. Massie, _A History of England during the Reign of George III._,
  iii. p. 207. London, 1865.

  See also J. M. D. Meiklejohn, _Hist. Eng._ Pt. ii. p. 330.

Footnote 692:

  Massie, _Hist._ p. 208.

Footnote 693:

  Wynter, _Insanity_, p. 80.

Footnote 694:

  J. H. Jesse, _Memoirs of the Life of George III._, iii. pp. 95 and
  274. Later on he was placed in the better care of Dr. Willis, a
  clergyman who was much celebrated for his management of mad people;
  see Jesse, iii. p. 90, etc.

Footnote 695:

  Hunterian Oration, p. 5.

Footnote 696:

  Besant, _London in the Eighteenth Century_, p. 377. See also Charles
  Reade’s book, _Hard Cash_.

Footnote 697:

  See Conolly’s description of the old-time reception of a private
  patient.—_Treatment of the Insane_, p. 138.

Footnote 698:

  D. H. Tuke, _Hist._ p. 171.

Footnote 699:

  R. Gardner Hill, _Lunacy; its Past and its Present_, p. 7. London,
  1870.

Footnote 700:

  R. Gardner Hill, p. 6.

Footnote 701:

  J. B. Sharpe, _Report and Minutes of Evidence on the Madhouses of
  England_; evidence of G. Higgins, pp. 12 and 13; of R. Fowler, p. 308;
  and of H. Alabaster, p. 326. London, 1815.

Footnote 702:

  _Edinburgh Review_, xxviii. p. 445. Edinburgh, 1817.

Footnote 703:

  Jonathan Gray, _History of York Asylum_, p. 12. York, 1815.

Footnote 704:

  See Conolly’s amazing denunciation in his _Treatment of the Insane_.

Footnote 705:

  A female patient was got with child by the head keeper; he was
  subsequently given a piece of plate, and kept a private madhouse of
  his own; see Sharpe, _Report and Min. of Ev._ p. 14.

Footnote 706:

  Gray, chap. iv.; _ibid._ p. 26; Beach, p. 4.

Footnote 707:

  S. W. Nicoll, _An Enquiry into the Present State and Visitation of
  Asylums_, p. 10, etc. London, 1828.

Footnote 708:

  Sharpe, p. 12; Gray, p. 23.

Footnote 709:

  Sharpe, _Report and Min. of Ev._ pp. 277, 290, 297.

Footnote 710:

  _Ibid._ p. 46.

Footnote 711:

  For instance, at Bethnal Green Asylum.—Beach, p. 12.

Footnote 712:

  As late as 1837.—Tuke, _Hist._ p. 81.

Footnote 713:

  Sharpe, p. 46.

Footnote 714:

  _Ibid._ p. 85.

Footnote 715:

  _Ibid._ p. 48.

Footnote 716:

  See Besant, _London in the Eighteenth Century_, where a print is given
  of this prisoner in his cell at p. 375.

Footnote 717:

  _Treatment of the Insane_, p. 28.

Footnote 718:

  Sharpe, _Report and Min. of Ev._ p. 120.

Footnote 719:

  _Ibid._ p. 59.

Footnote 720:

  Tuke, _Hist._ p. 153.

Footnote 721:

  Sharpe, _Report and Min. of Ev._ p. 68.

Footnote 722:

  For an account of some of these, especially as used in Portugal into
  later times, see G. A. Tucker, _Lunacy in Many Lands_, pp. 16, 1346,
  etc. Sydney, 1887.

Footnote 723:

  John Haslam, _Observations on Madness_, p. 317. London, 1809.

Footnote 724:

  Besant, _London in the Eighteenth Century_, p. 377. There is also a
  reproduction of Hogarth’s “Scene in Bedlam” from the “Rake’s
  Progress.”

Footnote 725:

  R. Gardner Hill, _A Concise History of the Non-Restraint System_, p.
  139. London, 1857.

Footnote 726:

  W. A. F. Browne, p. 119.

Footnote 727:

  One large asylum is said to have made £400 a year from exhibiting
  lunatics, but this would probably not include the keepers’ tips; see
  Tuke, _Hist._ p. 73.

Footnote 728:

  Conolly, p. 33. See also P. Pinel, _Traité Médico-philosophique sur
  l’Aliénation Mentale_, p. 65. Paris, An IX.

  J. B. Tuke, _Ency. Brit._ ninth ed. vol. xiii. p. 111.

Footnote 729:

  See E. Westermarck, _Moral Ideas_, i. p. 274.

Footnote 730:

  H. W. Carter, _Principal Hospitals_, p. 42. London, 1819.

Footnote 731:

  P. Pinel, _Traité_, p. 64.

Footnote 732:

  A. Halliday, _Lunatic Asylums_, p. 76.

Footnote 733:

  M. Esquirol, _Mémoires de Charenton_, pp. 46, 48.

Footnote 734:

  F. Beach, p. 11.

  J. Conolly, p. 10.

  R. Gardner Hill, _Concise Hist._ p. 141.

Footnote 735:

  _Animadversions on the Present Government of York Asylum._ York, 1788.
  It deals mainly with the question of finance.

  _Edinburgh Review_, vol. xxviii. p. 433.

  These produced _A Letter from a Subscriber to the York Lunatic
  Asylum_. York, 1788, etc.

Footnote 736:

  He died in 1797, and an inscription was erected to him in Westminster
  Abbey. See _Dict. Nat. Biog._, and Jonathan Gray, _History of York
  Asylum_, p. 18.

Footnote 737:

  Samuel Tuke, _Description of the Retreat_, p. 22. York, 1813.

Footnote 738:

  The _Description of the Retreat_ near York, already alluded to.

Footnote 739:

  To the _York Herald_, dated September 23, 1813. It was signed merely
  “Evigilator,” but had been written by Dr. Best, the head of the York
  Asylum.

  See J. Gray, _Hist._ p. 28; also D. H. Tuke, _Hist._ pp. 129, 148.

Footnote 740:

  _Edinburgh Review_, vol. xxviii. p. 433. Edinburgh, 1817.

Footnote 741:

  S. W. Nicoll, _An Enquiry_, p. 11; and see Jonathan Gray, _Hist._ p.
  31.

Footnote 742:

  D. H. Tuke, _Hist._ p. 79.

Footnote 743:

  J. Gray, _Hist._ chap. vi.

Footnote 744:

  D. H. Tuke, p. 161.

Footnote 745:

  D. H. Tuke, p. 157.

Footnote 746:

  Nicoll, p. 21.

Footnote 747:

  D. H. Tuke, _Hist._ p. 162.

Footnote 748:

  _Ibid._ p. 173.

Footnote 749:

  J. B. Tuke, _Ency. Brit._ ninth ed.; D. H. Tuke, _Hist._ p. 85; R.
  Gardner Hill, _Lunacy_, p. 5.

Footnote 750:

  See, for instance, Hunterian Oration, 1891, etc.

Footnote 751:

  R. Gardner Hill, _Lunacy_, p. 42.

Footnote 752:

  Andrew Wynter, p. 100.

Footnote 753:

  Hill, pp. 87, 88.

Footnote 754:

  Halliday, _Lunatic Asylums_, p. 2.

Footnote 755:

  F. Willis, _A Treatise on Mental Derangement_, p. 6. London, 1823.

Footnote 756:

  _Lunatic Asylums_, p. 2.

Footnote 757:

  W. A. F. Browne, p. 4.

Footnote 758:

  _Borderland of Insanity_, p. 11.

Footnote 759:

  Alexander Gibson, in _Ency. Brit._ ninth ed. art. “Insanity (Law).”

Footnote 760:

  “That” (kleptomania) “is one of the diseases I was sent here to cure,”
  a certain judge is said to have observed; but he did not cure it.

Footnote 761:

  One of these legal tests had been a knowledge of the multiplication
  table. W. A. F. Browne, p. 3.

Footnote 762:

  The “robust” attitude has been shown by Dickens. “That young Pitcher’s
  had a fever.” “No!” exclaimed Mr. Squeers. “Damn that boy, he’s always
  at something of that sort.” “Never was such a boy, I do believe,” said
  Mrs. Squeers; “whatever he has is always catching too. I say it’s
  obstinacy, and nothing shall ever convince me that it isn’t. I’d beat
  it out of him.”—_Nicholas Nickleby_, chap. vii.

Footnote 763:

  D. H. Tuke, _Hist._ p. 96.

Footnote 764:

  W. Tallack, _Penological and Preventive Principles_, pp. 249, 250.
  London, 1896.

Footnote 765:

  _Departmental Committee on Prisons Report_, p. 8. London, 1895.


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