Legal Procedures, Crime, and Punishment

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Legal Procedures, Crime, and Punishment


Origins. Beowulf, an Anglo-Saxon epic poem written just before 800, is a story of bravery, vengeance, and justice that reveals much about legal procedures, crime, and punishment in early medieval Europe. The monster Grendel slays Hroth-gar’s warriors until the hero Beowulf arrives. Beowulf kills Grendel and peace is briefly restored, but Grendel’s mother soon appears seeking blood vengeance. Eventually, Beowulf slays Grendel’s mother, and the feud ends because Grendel has no living relatives.

Kinship. The control of crime in Europe became a question of kinship after the fall of the Roman Empire. The unwritten code of the blood feud demanded vengeance whenever kin or a knightly retainer was killed. Crimes were viewed as attacks on entire families, and thus families were expected to pursue justice. Merchants, peasants, and others who lacked large and powerful families were forced to seek protection from local overlords. One who was wronged turned to real or artificial kinship for help. The resulting blood-feud system of vengeance was not without rules, however. Women, small children, and older males were excluded from the actual feuds, although they were responsible for soliciting support from male relatives if they were aggrieved. Furthermore, a kinship group both supported its aggrieved members and policed other members of the family. Kinship groups prohibited indiscriminate killing because such actions could force the entire kindred group to fight. During the post-Roman era, vengeance and revenge contributed to vicious cycles of families fight.During families.

Wergild and Oaths. Blood feuds ended when one side was eliminated or when a killer paid wergild or wergeld, or the price of a man, to the family of the victim. The amount of wergild was contingent on the status or dignity of the victim. The money served as an example that the dead man’s kin had acted correctly by defending him. The use of wergild was an early step in the transition from blood feud to the modern court system. Once territorial lords amassed sufficient power to legislate kinship vengeance, deliberations over wergild evolved into crude court cases based on oaths. Oaths were public statements made with the support of kin, and early decisions involved elaborate forms of communal oaths. An accused man would gather “oath-helpers” to stand beside him as he made a profession of innocence. Rulers and feudal overlords also demanded oaths of their vassals and subjects. Oaths therefore played an important role in the early administration of justice and in the creation of centralized lawgivers such as King Alfred the Great of Wessex. In 886 King Alfred demanded an oath of allegiance from all West Saxons and Mercians in his struggle against the Vikings. King Alfred later issued a law code that stressed the importance of keeping oaths, remaining loyal to a lord, and settling feuds without undue bloodshed. The shift from actual blood feuds to the battle of oaths included a strong Christian component: oaths were sacred and it was believed that God would intervene and determine the guilt or innocence of the accused.

Trial by Ordeal. The ordeal was a natural development of the blood-feud mentality of Beowulf s age: Beowulf fought three main battles, or ordeals, during which he proved that God was on his side by killing his opponent. The ordeal was a simple way to test whether an oath-taker was telling the truth. Trial by ordeal tested the credibility of the accused in situations where witnesses were unable to settle a case. An accused person would offer an oath and then submit to physical testing, usually with water or hot irons, to ascertain the veracity of the testimony. Water was commonly used to test those of lower social standing and hot iron was used for those of higher social standing, but the ritual itself was fairly similar. In the presence of a priest, the accused made an oath and then either placed one hand and forearm into boiling water or carried a red-hot iron a certain distance. The arm was then bandaged for three days. There was certain ambiguity in most cases as to whether the hand was sufficiently scathed. The decision of guilt or innocence was ultimately made by the assembled community, not by the priest or judge. The criterion for determining guilt or innocence thus varied from community to community. Cold water could also be used for an ordeal. The accused was lowered into water and judgment was made as to whether or not the person floated. The assembled community also rendered the ultimate decision in ordeals by cold water. Verdict by ordeal was based on the belief that God would intervene to determine guilt or innocence. Priests would celebrate mass before the ordeal and admonish the accused as to the severity of divine judgment.

Rise of Juries. Powerful overlords opposed blood feuds and insisted on court cases involving oaths and witnesses. Rulers redefined crimes as attacks on the state instead of mere attacks on the individual. These changes contributed to the distinction between criminal cases and civil cases. Individuals could still pursue civil cases, but the state became responsible for criminal cases. Twelfth-century changes in the notion of crime influenced the way that criminals were judged and punished. The shift from accusatory justice to inquisitorial justice did not happen at the same time across Europe, and some areas never adopted inquisitorial trials. However, the rise of juries in accusatory systems, such as in England, corresponded with the rise of inquisition processes in areas that combined Roman and canon law traditions.

End of the Ordeals. The Fourth Lateran Council (1215) of the Roman Church prohibited priests from participating in ordeals. Ordeals were useless without the religious component and thus the council’s elimination of ordeals from church courts also effectively eliminated them from secular courts. One remnant of the ordeal was the belief that torture was an acceptable form of extracting a confession. The ordeal was, after all, a form of torture meant to persuade the guilty to confess. The elimination of the ordeal as a viable judicial process forced rulers across Europe to develop suitable replacements. The methods tended to develop along two lines: accusatory justice with trials in England, and inquisitorial trials based on a mixture of Roman and canon law for the rest of Europe. Continental Europe tended to follow a Roman-canon law system that employed inquisitorial trials quite distinct from the open jury trials of the English accusatory model. This tradition evolved out of efforts at the Fourth Lateran Council to reform the church and society. The Council attempted to control the beliefs and actions of the laity, reform the clergy, stifle heresy, deal with non-Christian minorities within society, and to institutionalize a process of church inquisition. The first four goals combined to provide a new impetus for the creation of inquisitional practices. In order to monitor belief and stop false beliefs, known as heresy, the church needed a severe legal system that could sniff out and destroy heresy. Since heresy was the equivalent of treason against God, it was punished by death. The Roman-canon law tradition allowed the church and the state to progress through inquisition trials. The authorities could initiate legal procedures without actual accusations. Courts took the initiative and began investigations by collecting evidence and arresting suspects. The authorities ceased to be bystanders at trials and became the force of the trial. Communal self-regulation based on communal deliberations was replaced with a system of prosecution exerted from above. Moreover, the inquisitorial model called for two eyewitnesses or a confession; hence, torture became an accepted method of extracting confessions. Vengeance became a burden of the state.

Inquisition. In 1231 Pope Gregory IX gave a convent of Dominicans the right to form an inquisitorial tribunal. This right came directly from the Pope and was part of the rise of Inquisitions within the Roman Catholic Church. The inquisition was not one uniform movement; rather, it was a series of court proceedings aimed at destroying heresy. The Church was especially severe with heretics who remained obstinate in their beliefs. Relapsed and unrepentant heretics were turned over to the state for actual punishment or execution. The church thus avoided pollution of the clergy by the shedding of blood. Condemned heretics were occasionally burned alive by secular authorities, thereby exterminating forever any memory of the shameful person or purifying the community of evil. Ultimately, the community would avoid God’s wrath by destroying all memory of the heretic’s deeds. The auto-de-fe originated as a religious act of penitence and justice, but it evolved into a public spectacle. Bernard de Gui held a number of famous auto-de-fe in early fourteenth-century France.

Procedures and Incarceration. Inquisitorial tribunals were lengthy affairs that contributed to the development of prisons since accused heretics were incarcerated throughout the process. Inquisitors would arrive in an area and announce a grace period where all could confess sins. Males over age fourteen and females over age twelve were required to offer personal confessions and to report any indiscretions in the community. The resulting atmosphere of suspicion would continue as the grace period was recalculated. Inquisitors then incarcerated potential heretics without offering explicit charges and without explaining who the accusers were and what they had said. Heretics were presumed guilty until proven innocent and thus lost all rights including control over their own property. If heretics did not confess, then the inquisitors would show them the tools of torture and explain what would happen if they did not confess. Ecclesiastical inquisitors viewed heretics as the worst possible threat to society and thus they altered procedures in significant ways: names and testimonies of witnesses were withheld; the defendant’s access to counsel was limited; testimony from questionable witnesses was accepted; and the accused was offered false promises of leniency in attempts to win confessions. These changes were significant because government courts turned to the Inquisition as a model for actions. As a result, torture became a standard procedure in most of Europe.

Torture. The Roman-canon legal tradition called for two eyewitnesses or a confession. With the shift to ex officio cases, where the state brought charges against an individual, it was frequently difficult to find two eyewitnesses. Torture was not a means of proof, but rather of obtaining a confession that could stand in court. If the court decided that a confession could be obtained, then the accused was given religious encouragement to confess. This was followed by a display of the instruments of torture in order to encourage confession. Judges turned to torture as a last recourse in the pursuit of truth. Authorities frowned on innovations in torture and insisted that no blood be shed and that no permanent injury be inflicted. Common forms of torture included physical stretching such as the rack, sleep deprivation, and fire torture. The strappado, a pulley system whereby the hands of the accused were tied behind the back and a rope was placed through a pulley or over a beam, was used to repeatedly lift the victim into the air. Children, women, and everyone charged with less severe crimes would simply have their hands tied tightly, then released and tied again. Water torture involved restraining the accused and forcing the person’s mouth open. A piece of linen was placed in the mouth to conduct water down into the throat. The accused had trouble breathing and could die if blood vessels in the neck ruptured.

Proceedings. Suspected criminals were taken to criminal courts of the local city or territory. They were placed in jails that served both as places of detention and physical suffering. Suspects were interrogated and encouraged to confess immediately. Those who did not confess were tortured. Not surprisingly, most suspects confessed under torture. These events occurred without recourse to a defense attorney. The pursuit of justice had become the concern of local authorities, but sentencing was public and thus differed from community to community. Two main factors contributed to the sentencing: the deterrence of future crime and the appearance of merciful courts. Courts were eager to show the mercy of a judgment and they forced the guilty to swear “oaths of truce” stating that the guilty would not seek revenge for the decision. Those sentenced to death were given three days to prepare for death. Those not sentenced to death were usually punished in the part of the body that committed the offense, or they were banished from the community. Mutilations, branding, and flogging were the most common forms of bodily punishment and they were frequently combined with social disgrace such as the pillory. Fines and church punishments involving penance were also issued. Death, the most severe punishment, was always a ritualized ceremony. Executions by burning, drowning, and burying alive were common ways to purify the community because they destroyed all traces of the evil person. Corpses of those executed in this manner could not be buried in a churchyard and thus, from the community’s perspective, the corpse no longer existed. Executions were public affairs that sent a message to the community. The community also participated by witnessing the execution and thereby showing communal consent. Residents who lacked strong social connections were treated more harshly because they lacked public support at the sentencing stage of trials. Punishments were public events that inflicted pain and shame on the guilty.

Punishment. Medieval imprisonment was usually employed in order to extract a ransom from relatives and not to exercise judicial punishment. Canon law, on the other hand, sought penitential punishment, and thus monks and secular clergy were the earliest inmates in institutionalized disciplinary systems. Monks fell under canon law as well as monastic regulations that could be quite severe. The Rule of Saint Benedict does not mention imprisonment, but most monasteries had a place for penitential imprisonment. By the twelfth century, monasteries were expected to contain some sort of prison. Monastic imprisonment included beating with rods and dietary restrictions, but imprisonment was rare and generally not excessive. Monastic imprisonments represent early examples of confinement for specific durations based on the notion of moral correction.

Leper Colonies and Forced Labor. Other medieval forms of imprisonment included leper and other communities, places of forced labor, and hospitals. Unlike the modern hospital where disease is cured, the medieval hospital was a place to house the terminally sick. In the eleventh through thirteenth centuries, European rulers systematically confined certain residents without actually imprisoning them. Lepers were forced to live in separate communities apart from the towns and cities, whereas Jewish residents were confined to clearly defined residential quarters within cities. The galleys were a common form of forced labor in the Mediterranean area, and across Europe forced labor was used on public building projects, such as fortifications and city walls. Simple banishment was more widespread than imprisonment in the Middle Ages.

England. The Norman invasions (1066) contributed to the birth of the modern prison system in England. After the Norman conquest of England, William I or William the Conqueror (ruled 1066-1087) built the Tower of London in order to imprison his enemies. The Tower of London has long been revered as the ultimate medieval place of imprisonment. Its unique location, partly inside and partly outside of the city walls, gave it a daunting stature to all who traveled to London. The tower is best known as a prison for famous aristocrats. In the thirteenth and early fourteenth centuries it was also used to house ordinary felons, but it usually was vacant except for the occasional important prisoner. Also in London, the Fleet was an early royal prison that housed prisoners of war and hostages. Newgate, on the other hand, was built after Henry II’s 1188 order to purchase land and construct a jail for London. Newgate was reconstructed in 1236 at the direction of Henry III. The jail and dungeons underneath housed the worst criminals in the city of London until the construction of Ludgate Jail at the end of the fourteenth century.

Jails and Jailors. In the eleventh century, royal officials known as sheriffs became responsible for the safe custody of suspected criminals. Offenders were housed in dungeons of castles, manors, and gatehouses. The 1166 Assize of Clarendon instituted the use of juries and decreed that all counties needed to provide sheriffs with buildings to house suspected criminals. Theoretically, the king owned the county jails, but they were controlled locally with no funding from the Crown. Jailors were usually unpaid, or poorly paid, entrepreneurs who made their living through bribery, fees, and even rents. Rooms in the jail ranged from squalid quarters on the “common side” to beautiful apartments on the “master’s side.” Beyond this financial segregation, criminals were usually kept separate from debtors. Male and female inmates, on the other hand, could mingle. Separate facilities known as Bishops’ Prisons were used to imprison members of the Church who fell under Episcopal jurisdiction instead of royal jurisdiction. The Tuns were a third type of facility that was used for the overnight incarceration of vagabonds and suspicious people.

Continental Prisons. Continental rulers began constructing prisons and jails in the thirteenth century. The Chatelet was a fortress in Paris that was converted into the prison of the provost early in the thirteenth century. A tower in the fortress housed prisoners in a wide range of rooms based, as in England, on the status of the prisoner. Prisoners tended to be citizens awaiting decisions of the provost’s court, which was also in the Chatelet, although a small number were imprisoned for punitive sentences. Outside of Paris, portions of royal castles were occasionally used for prisoners. Rulers in Castile faced the same problems as the French kings in attempting to impose centralized law and authority. The 1265 “Collection in Seven Parts” issued by King Alfonso X outlines prison regulations, but historians know little about actual prisons or implementation of the regulations. Italy was the center of legal study and the home of one of the most famous early public prisons. In 1297 the city of Florence began construction of a public prison called Le Stinche. The name Le Stinche became so well known as a prison that citizens of other cities, such as Siena and Pistoia, used Le Stinche as a slang term for their prisons. Florence, Bologna, and other northern Italian city-states were the earliest areas on the continent to use punitive imprisonment. Those same cities also housed influential universities that attracted law students from across Europe. Le Stinche and the Italian model had a profound influence on incarceration and justice in late medieval Europe.


R.I. Moore, The Formation of a Persecuting Society (Oxford: Blackwell, 1987).

Norval Morris and David J. Rothman, eds., The Oxford History of the Prison (Oxford: Oxford University Press, 1995).

Edward Peters, Torture (Oxford: Blackwell, 1985).

Petrus Spierenburg, The Spectacle of Suffering: Executions and the Evolution of Repression, from a Preindustrial Metropolis to the European Experience (Cambridge: Cambridge University Press, 1984).

Ikins Stern, The Criminal Law System of Medieval and Renaissance Florence (Baltimore: Johns Hopkins University Press, 1994).

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Legal Procedures, Crime, and Punishment

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