The Pathos of Politics (113-5) England


The Germanic legal codes inherited by Anglo-Saxon England used imprisonment for theft and witchcraft, but the most common punishments were those in the rest of Europe: compensation, exile, mutilation, and death.

In the violent century following the Norman conquest of England in 1066, William the Conqueror and his successors attempted to impose their authority throughout the kingdom, but order was not attained until the 2nd half of the 12th century, under Henry II.

William I built the 1st English royal prison – the Tower of London – to hold his enemies. There were others, such as the Fleet, which were used chiefly as jails, as well as for occasional prisoners of war and hostages.

Prisons were used to hold private enemies, especially during the Anarchy (1135–1154): a disastrous civil war of succession for the throne after Henry I, which started after the king’s only legitimate heir died in the accidental sinking of the White Ship on 25 November 1120.

Henry II issued the Assize of Clarendon in 1166. It was an effort to deal with rampant lawlessness in the country. The Crusades were in full swing, keeping noble landowners away from their castles for years on end.

Worse, in the wake of the Anarchy, the mercenary soldiers hired for the effort were out of work. Many took up robbery and other violence for their livelihoods. Crime surged in the absence of authority.

The assize established a presenting jury for each district, which was to inform the King’s itinerant judges of the most serious crimes committed there, and to name a suspect if possible. This jurisprudential proceeding became the modern grand jury.

The assize had the immediate effect of engendering false accusations, and so fueling miscarriages of justice. In a longer perspective, the act began the transformation to an evidentiary model for criminal trials.

At the time, the prevailing party in a trial, especially for felonies, was decided by ordeal, battle, or compurgation. Compurgation allowed a defendant to be acquitted by getting a required number of people, typically 12, to solemnly endorse his oath of innocence.

While Henry’s 1166 assize fostered trial by jury, recourse to trial by combat was not officially rescinded until 1819.

On the heels of his assize, Henry II ordered sheriffs to build jails in each county, to hold those accused of felonies until they could be tried by itinerant royal justices, the counterpart of circuit court judges. Nobles, with more limited rights of justice, also kept jails.

Some English jails were franchisal: the right to arrest and hold an accused was given or sold by the king to jail keepers, who derived their income from the difference between what they were paid to keep a jail and the money spent on its maintenance and cost of prisoner keep. In the late 20th century, the US adopted this model for its prisons. Franchisal incarceration is a long-proven means for inhumane treatment via the profit incentive to keep prisoners on the cheap or extort them.

Into and in the 13th century, imprisonment became more common for debtors of the crown, and for those who interfered with the justice system. But confinement remained primarily coercive. In the early 13th century, English jurist Henry of Bracton could comfortably quote Ulpian in that English prisons were for custody, not punishment.

The prison-building program begun by Henry II took on a life of its own. From the 1270s, the number of prisons in England and imprisonable offenses rose rapidly.

Besides the proliferation of offenses that might land one in prison, the ways to stay out diminished during the 13th century. Bail, frankpledge, and property attachment were not as reliable as they used to be in springing someone from stir. The number of offenses for which no bail could be obtained rose, including arson, jailbreaking, treason, and arrest by order of the king or his chief justice.

By 1520 there were 180 imprisonable crimes in the common law. Offenses worthy of imprisonment included vagrancy, disturbing the peace, illicitly bearing arms, and moral umbrages. Locking up minor misfits became commonplace.

English criminal law intended punishment to be quick and public, and so serve as a deterrent. Hence, there was shaming displays, which included the stocks, pillories, ducking stools, branding, and mutilation. Capital punishments also made their stark point: hanging, decapitation, drowning, burning, and being buried alive.

Much like Roman prisons, conditions in medieval English prisons varied considerably, from comfortable to foul.

Prisons presented profit opportunities to jailers. A prisoner could better his situation through payment. While irons were not, by law, supposed to be used to aggravate confinement, paying an “iron fee” might provide considerable relief.

Prisoners bore much of the cost of their confinement. Private charity greatly aided those imprisoned, particularly the poor, who depended upon benefaction for their survival.

As the centuries wore on, the flagrant displays of punishment lessened. A sentence of confinement grew to be a punishment unto itself. Prison became an institution.

England was a compact kingdom, which from the late Middle Ages was ruled by a series of sovereigns who based many of their claims to legitimacy on the strength of common and canon law. English jurisprudence and its punishment practices spread to its colonies, and so the common law regime became one of the major justice systems of the modern world.