Punishment Notes

The Criminal Trial in Later Medieval England - J. G. Bellamy (Stroud: Sutton Publishing, 1998) pp. 8-18???? Felony ? forfeiture of life or member with lands going to the lord or the king and chattels going to the king Felony occupied the middle ground between the ultimate crime of treason and the minor offence of trespass Greatest crime of treason was to be rooted out by every means possible and then punished in a manner whose brutality was quite out of keeping with other English punishments Other serious offences, the felonies, were viewed much more dispassionately unless they involved a dangerous feud which might disturb the upper classes or cause substantial financial loss to the king Interest of kings seems to have had little effect on conviction of felony e.g. Henry V is usually seen as a powerful king who was very interested in public order yet gaol delivery conviction rate is lowest in the period Persistent theme in the lower house of Parliament was need for keepers or justices of the peace to have the power to try felonies without the supervision of a judge or lawyers Only about a dozen professional judges - woefully deficient in expert legal skills ~ May have been result of royal parsimony and control of those who did not agree with royal ideas - did not want to appoint them to such a high position Crown's acceptance of low level of felony convictions is shown in comparison to concern to convict for treason ? very few who were accused of it were acquitted as they were not tried by gaol delivery but by commissioners of oyer and terminer who concentrated on the king's rights The Modulated Scream: Pain in Late Medieval Culture - E. Cohen (London: The University of Chicago Press, 2010) pp. 1-51???????? Association of physical pain with the human soul and emotions Sought purpose and positive significance of pain Preachers - pain is morally beneficial for human virtue Pain could be used to unlock secrets of the mind and body ? torture 2 categories - pain as a tool and pain as a sign 'Judicial systems perceived pain as an indispensable tool of justice and government. Pain became one of the cornerstones of hierarchic society: just as God maintained hell for sinners, so kings must maintain dungeons as well as palaces' (p. 6) Ultimate power of the afterlife Pain symbolised either vice or virtue Jurists used either present or imagined pain as their tools, coupling fear and intimidation with actual infliction of pain Roman law - used as basis for torture In general, treatises on penal law avoided discussion of torture - seen as a truth-findin mechanism, not a punishment Connection between pain and truth was one of the basic tenets of the inquisitorial system of justice - yet constant criticism of its value 'At the same time, the use of physical punishment for crimes kept increasing throughout the later Middle Ages; it was viewed as salutary both for the culprit and for society as a whole' (p. 19) Pain of penitence Link to pain in hell Pain and fear were a deterrent used by the church and by the law The Legal Infliction of Pain: ? Torture belonged to the law of proof - predicated upon the certainty that there were sufficient grounds for assuming guilt ? brought trials to a conclusion through eliciting confession ? The idea of punishment inherently assumes the existence of a superior, ruling force that can evaluate, legislate, judge, condemn and execute the sentence ? Punishment might outlast existence - death ? Yet physical penalties meted out by secular authorities, even death penalties, were considered useful because existence continued after death ? Torture - inflicted pain in order to gain the truth ? Aim of law to correct criminal or to improve others or that, once the criminal is removed, the rest should live in greater safety ? Medieval jurists considered the first purpose of the law to be retribution, not correction ? Justice had a morally sanctioned purpose - increasingly painful penalties for crime had a rationale ? 'If the malefactor could no longer be corrected because justice had killed him already, the painful manner of his death would certainly count towards lessening his time in purgatory' (p. 45) ????????Justice ensured both communal correction and peacekeeping ? most painful penalties were meted out in the public sphere in order to educate the public ~ Payment of fines did not require a public spectacle Shame and pain in the pillory - uncomfortable position combined with public harassment and ridicule Public whipping was a common punishment - even practised by ecclesiastical courts Whipping was followed on a scale by mutilation - ear cropping, branding and various others ~ Double publicity - 'the maiming was first performed in public and was thenceforth inscribed in a person's body and public identity till death. Though the law considered these penalties defamatory - a matter of shame, not pain - one cannot ignore the fact that this ill fame was carved upon the culprit's body in a painful manner' (p. 45) Execution was top of the scale of severity - different types dependent upon local law, culprit's status and his crime ~ Thieves were hanged, murderers were beheaded and traitors had their bodies slowly and painfully taken apart Careful processions and sermons with great symbolism Executions were meant to be rituals of pain in the sense of penitence, not of infliction Yet for every famous and carefully staged execution there were numerous cases of plain punitive hangings ~ Yet may have received attention after their death if not before ~ Place of execution was public, often outside the walls and visible to all incomers Judicial torture, in contrast, was very secretive 'the spectacle of pain was salutary for the viewers as well as the sufferer' (p. 46) 'The difference between the 2 practices lay in the degree of culpability. A suspect tortured for the sake of a confession was not a proven criminal; hence, there was no virtue in the pain and no benefit in exhibiting it to the public. However, the penalties of iustitia were all public for good reason: as well as retribution, they clearly advocated the virtues of pain not only for the personal body but also for the body social' (p. 46) Poor might be hanged, drawn and quartered for offences - wealthier criminals could compensate with discreetly paid fines or private settlements Crime records show that letters of grace could be obtained for murder much more easily than for theft and that obtaining a remission hinged more upon 'honest' status than upon the crime Public physical penalties were part of medieval life Useful for spectators even more than the culprit Continued through preaching of purgatory and hell Judicium Pillorie (The Judgement of the Pillory)???Articles for inquests into violations of assizes of bread and beer, weight and measures and forestalling Appears in Common Law statute books written through the mid 14th century 'If a baker or a brewer be convicted because he had not observed the Assize of Bread and Beer, the 1st, 2nd and 3rd times, he shall be amerced according to his offence;if it be not over-grievous; but if the offence be grievous and often and will not be corrected, then he shall suffer punishment of the body, that is to wit, a baker to the pillory and a brewer to the tumbrel, or some other correction' Want accurate measurements of goods 'And for default in the weight of the bread, a baker ought to be amerced, or to be judged unto the pillory, according to the law and custom of the court' Check how many brewers have sold contrary to the assize - 'they shall be amerced for every default, or be judged to the tumbrel, if they sell contrary to the assize' If they use false weights ? amercement or pillory English Historical Documents IV - A. R. Myers (ed.) (London: Eyre & Spottiswoode, 1969) p. 1059, pp. 1080-1081 616. A seller of unsound wine punished by being made to drink it, 1364 ? Plea of contempt and trespass against John Rightwys and John Penrose, taverners ? Parish of St Leonard Estchepe, London - 'sold red wine to all who came there, unsound and unwholesome for man, in deceit of the common people and in contempt of our lord the king...etc' ? John Rightwys was acquitted ? John Penrose was sentenced to be imprisoned for a year and a day ? A little while later the 4 supervisors came and gave another judgement - 'that John Penrose shall drink a draught of the same wine which he sold to the common people and the remainder of such wine shall then be poured on the head of John Penrose and he shall forswear the calling of a vintner in the City of London for ever' 631. Sentence of death for burglary and claim of benefit of clergy, 1406 ? William Hegge with the mainour (stolen goods in hand) of divers good and chattels of Margaret Normantone ? Broke into her shop at night ? Says he is not guilty and puts himself on the country for good and for bad ? Jury of 12 say that he is guilty of the felony and shall be hanged by the neck ? Then says that he is a clerk and that he can read - court is without the Ordinary so cannot proceed ~ Committed to the gaol at Newgate to remain until claimed by the Ordinary Crime, Law and Society in the Later Middle Ages - Anthony Musson and Edward Powell (Manchester: Manchester University Press, 2009) pp. 180-210 5.13 Punishment: the hanging of felons (1285) ? Normal punishment ? Slow strangulation ? Surviving was seen as miraculous ? petitions for pardon ? Walter Eghe 1285 - survived due to being cut down too early ~ 15 days sanctuary in a church, then escaped to another place of sanctuary and eventually obtained a pardon ~ Had stolen cloth and other things from a house ? King initiated an investigation into how the officials in Norwich had failed to execute Walter - supposedly for this failure briefly took the liberty of the city into his own hands 5.14 Punishment: the execution of traitors, Gilbert Middleton (1317) ? Increasingly brutal punishment for traitors during Edward I's reign ? Spectacle of Middleton's death pre-dated more frequent use of drawing, hanging and quartering as a form of punishment during last 5 years of Edward II's reign 5.15 Pardon: general royal pardon (1377) ? Sign of royal prerogative of mercy - golden jubilee of Edward III ? Covers all offences except treason, murder and rape ~ Also release from fines, debts etc. ? Standard fee for the pardon in chancery was 18s 4d ? Reminds them of the similar 'great grace' given on his fiftieth birthday 1362 ? 'our said lord the king generally pardons the suit of his peace for all types of felonies committed or perpetrated before the beginning of the said fiftieth year, with the outlawries, if any were pronounced on the same for such reasons; excepting absolutely treasons, murders, common thefts and rapes of women' 5.16 Pardon: personal pardon (1318) ? Ellis Martel has purchased one in order to clear himself of the death of Thomas le Leure ? Pardoned 'the suit of our peace and whatever by reason of out suit pertains to us with respect to all matters of felonies and trespasses committed in whatsoever way in breach of our peace' 5.17 Pardon: recruitment for war ? E.g. last decade of 13th century - granted by Edward I to those serving in his Scottish and Gascon campaigns ~ Even pardoned for indictments of murder e.g. 'Simon le Seler is indicted in the king's bench for slaying Walter of Winchester...he says he ought not to answer to the king's suit because the king has pardoned him' ? 1414 'superior eyre in Shropshire - a temporary surety of the peace was obtained by a number of those indicted who later served at Agincourt in 1415 ~ Promised that 'each of them for ever afterwards would properly behave and conduct himself as regards the lord king and all his people' Arbitration ? Network of royal and local courts offered a convenient forum for litigation and the punishment of criminal activity but it was not the sole means of dispute resolution ~ Formal adjudication was only one method ? Spectrum ranging from violence to the courts ~ Was negotiation, mediation and arbitration ~ Varying levels of 3rd party involvement ? Property was usually at the heart of disputes but was also negotiation and arbitration over acts of felony and trespass ? Initiating litigation could be a preliminary stage in the arbitration process ~ If terms of an award were breached then bonds to pay large sums of money were enforceable at common law ? Magnates had a particular interest in this ~ Maintenance of harmony was one of the obligations of lordship ~ Were in great demand to settle disputes ? Monarch was the ultimate arbiter and peacemaker ~ Much dependent upon his personality - had to control nobility ? Arbitration was still a legal process ~ Also religious - could come together in a church for a kiss of peace ~ Special feast or drink in a tavern together ? Negotiation and private treaties were encouraged among the gentry and nobility ? Much also occurred between merchants and guilds ? Les s records as it was outside the official court ? 'Lovedays' were favoured by less affluent parts of society 6.1 The disputing process: the Paston-Aslake dispute (1426) ? From the Paston letters ? Following the murder of John Grys of Wighton, Norfolk, his son and his man servant ~ Intended to frighten Paston ? Shows complexity ~ Paston initiated a trespass suit in Norwich city court ~ Aslake petitioned parliament ~ Paston presented a bill against the sheriff when accounting at the exchequer ~ Aslake obtained a writ from chancery ~ Some time later after several supposed agreements, a settlement was brokered ? Also highlights the closeness of relations between lawyers and major landowners and their ability to manipulate the legal process 6.2 Peacemaking and negotiation: Henry V settles a dispute while eating a dish of oysters ? Probably an apocryphal story by this chronicler ? Henry's threat of coercion- hanging -> compromise 

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