Medieval Law Enforcement in TTRPGs - Part Three - Punishment
In previous posts I have looked at the means of coercing obedience to the law and some of the venues and procedures of criminal trials. The third part of this series will be examining the reality of punishment in late medieval England and how (or, perhaps more accurately, whether) this history can be incorporated into quasi-medieval fantasy RPG worlds.
It is cliché to say of England in the Middle Ages that it was a land of harsh punishments for sometimes trivial crimes, and this is not altogether untrue. I never quite learned to regard with detached equanimity the names of defendants I saw in the records of the quarter sessions and the King’s Bench with the marginal or superscript ‘S9’ - an abbreviation for the phrase suspensurus est (‘to be hanged’).
Yet the actuality of punishment in later medieval England was rather more nuanced than the relentless butchery that those long lists of the condemned might imply. In principle, late medieval English criminal law could have inflicted a truly horrific level of judicial killing. Most serious crimes such as murder, rape, arson, burglary, robbery and theft carried the death penalty, but so did a large number of minor offences. Unlike today, judges had little discretion to disapply the penalty that the offence called for, and a finding of guilty by a jury in a felony trial carried with it the usually necessary assumption that the sentence would be death. If everyone (or even something like a majority) who went to trial on notionally capital charges were convicted and executed, the body-count would have been terrible indeed. But the reality was that the English judicial system proved itself adept at the selective application of the rigour of the letter of the law. That it often employed those methods of amelioration based not on modern notions of justice and equality but rather on the contemporary concern with hierarchy, status and reputation strikes us now as fundamentally wrong, but this not a post about comparative ethics.
The first thing to note is that medieval English law was perfectly capable of drawing distinctions between circumstances and adjusting its formal response to them. The clearest example of this can be found in allegations of homicide. To qualify as murder - or culpable homicide - the legal requirements that needed to be met were that the defendant had killed another person ‘with malice aforethought’ (cum malicia praecogitata as the indictments say) and without lawful excuse. In modern legal conception we would say that murder consists of a ‘guilty act’ (actus reus) and a ‘guilty mind’ (mens rea) and a conviction requires the establishment of both elements ‘beyond a reasonable doubt’ (a popular but actually an archaic formulation - modern English juries are instructed that ‘you must be sure’). To escape a conviction for murder a suspect therefore had to establish as a matter of fact that the circumstances of the alleged crime were such as to obviate one or more of the requirements of the offence.
One of the most common circumstances that medieval defendants to a charge of murder appealed to was that the killing occurred in the context of self-defence and so lacked the element of pre-meditation. This continues to be the case in most modern legal systems which, either by common law or by statutory codification, continue to require the same criteria of fear of imminent harm, lack of reasonable alternative to force and a proportionate use of that force when considering a defence of self-defence to a murder charge. In England, this old, old question was revisited with some urgency a few years ago in the case of R. v Martin. These criteria, then as now, could not simply be asserted; there were a number of facts that needed to be established or accepted by a jury. The following account is more or less typical.
On 23rd May 1328 Stephen Scot and some companions of his of the king’s household were leading their masters’ horses to Northampton. In Ashby David they caught up with Richard Ocle and Adam Merlyn and some others of their company, and a quarrel arose between the two parties. Stephen Scot dismounted from his horse and attacked Adam Merlyn with his sword drawn. He wounded Adam five times in the head and Adam fell to the ground and his life was despaired of. Stephen left Adam and turned upon Richard of Ocle, intending to kill him with his sword. Richard fled as best he could, but when he reached the head of the town he came to a wall which blocked his flight. Because he had to defend himself in order to avoid being killed, he drew his bow and shot Stephen in the breast with an arrow and killed him on the spot. Upon being asked, the jurors said that Richard shot him in self-defence and not in felony or premeditated malice; they said expressly that if he had not thus defended himself he could not have avoided being killed.
D.W. Sutherland (ed.), The Eyre of Northamptonshire 3-4 Edward III A.D. 1329-1330 Vol. I (Selden Society, Year Book Series 97, 1981, London 1983), p.166.
In this account all of the elements necessary to establishing self-defence are present to an almost suspicious degree. The defendant - Richard Ocle - is in reasonable fear of his life, having witnessed the attack on his companion, and so he flees until he cannot escape further and only then does he, as a desperate act of self-preservation, slay the victim with a single bow shot. It could be that this narrative represents something like the facts of the matter, but the truth is that the reality of such events is almost always buried under the formalities of the pleading and so we cannot be sure. One certainly has to marvel at the sheer good/bad luck of so many medieval defendants in cases of murder who tied to escape, only for their progress to be blocked by an (in)conveniently placed, but almost always vaguely located, wall. What is clear from the final sentence of the record is the important role of the jury in deciding the fate of defendants through the way that accusations were framed and what jurors chose to take into account and give credence to when deciding to present an allegation or reach a verdict. This is where the formal nature of the criminal law and punishment collides with the more informal social mechanisms for distributing punishment.
No doubt, in some cases, jurors made decisions about charges and verdicts that were strictly disinterested in the way that we require of modern trial juries. But, in medieval England, jurors were routinely selected from among local men precisely because they had knowledge either of the offence, the defendant or the victim. As discussed in the context of social discipline, the likelihood of guilt and the depth of culpability were closely bound up with the local status and reputation of those involved. In one sense, this is eminently justifiable. In a time with very few means of communication, limited capacity to capture and store information and a wholesale absence of anything resembling forensic science, the prosection of crime had to rely to some degree on personal knowledge of the events and participants.
This would have been all very well if, as a suspect or as a victim, you were regarded as a trusted and respected member of local society of good standing and repute among your neighbours, who were likely to be the jurors that had so much influence over how charges were framed and, of course, the verdict. Less fortunate were the strangers, poor men and those of no account or of bad reputation. The Bristol case recorded in the above 15th century record is typical. The defendant was a rural yeoman who had no goods or chattels to be confiscated and the victim was a cloth dealer, a man of trade and commerce, who was very probably known to the jurors drawn from among the worthy and sufficient men of the locality. This strikes us as grotesque today. But in the context of the times, when a man’s moral character was to some extent reflected in his social degree, it made perfect sense.
This is not to say that medieval English men and women were indifferent to injustice. One group of jurors petitoned Edward IV for a pardon for a man they had convicted of horse theft and who had been sentenced to death, only to discover after the trial that another had confessed to the crime ‘It is’, they said, ‘a grete pitye to see any man dye’ in these circumstances. Margeret Paston wrote to her husband that the rigid reputation of the newly crowned Edward IV was such that many feared being ‘hanged at their own doorstep’. This was not a compliment. Nor should it be forgotten that the reverse of injustice was a form of ‘mercy’ whereby local men were spared by their neighbours the full and harsh penalties of the law. We will never know how many cases that should, strictly, have warranted a death sentence were never prosecuted as capital offences or resulted in acquittal because of local sentiment. I can’t demonstrate it, but I wouldn’t bet against the jury’s verdict of self-defence on Richard Ocle for the murder of Stephen Scot being a case of local men banding together to protect one of their own after he killed a visiting outsider. These sorts of social considerations are rarely simple in their ethical calculus.
So far, we have spoken about capital punishment to the exclusion of all others and this for the very good reason that it was at once both the most extreme and the most visible form of retribution. As has been mentioned briefly in the previous discussions of medieval English law enforcement, there was comparatively little tradition of imprisoning numbers of people for extended periods of time as a punishment before the 18th century. Although many royal castles contained some purpose-built or ad hoc accomodation for prisoners and urban public buildings, such as the Moot Hall in Aldeburgh in Suffolk, often contained a small holding cell, few of these were either architecturally or organisationally suited to detaining large numbers of people for long periods of time. Instead, prisoners were usually only briefly held - perhaps for a few weeks - pending trial on the most serious accusations or awaiting execution after conviction. As a side note, and to prove there is nothing new under the sun, the running of gaols was often contracted out (or ‘farmed out’) to people who paid the official warden of the gaol a fee in return for running the prison and extracting the profits that could be made from charging prisoners for improved lodging, food and permission to receive visitors. See my previous note about the amusing case under Edward IV where one of these farmers tried to evade a fine for allowing prisoners to escape after a woman brought to the gaol ‘a certain pastry’ in which was concealed a file. As far as I know, this is the earliest case on record of the cartoonish notion of ‘the file in the cake’ jailbreak.
The primary method of execution in medieval England was hanging, a process that hadn’t changed much in many hundreds of years. Initially, the condemned was literally ‘strung up’ - the hangman and his assistants pulling on the rope around the victim’s neck that was looped over the gallows and so lifting the prisoner’s feet off the ground. Death was probably by slow strangulation. This grisly process is illustrated in the illumination from The Life of St Edmund, above. As time went on, the method was adjusted so that the prisoner was ‘dropped’, pushed off a ladder, bench or cart, causing a sudden, sharp drop that was more likely to sever the spinal column causing death (usually) more rapidly. It is not clear whether this change in methodology was to spare the condemned or the executioner. Alas, there is no truth to the myth that medieval English law recognised that, where the hangman’s rope broke and deposited the victim safely to the ground, the prisoner was entitled to a pardon since god had clearly made his judgment known.
Hanging was only one stage in the punishment for commoners convicted of treason. Those unfortunates were hanged before being cut down alive (a process that implies they were ‘strung up’, rather than being ‘dropped’, to ensure they remained alive) and drawn. ‘Drawing’ consisted of some species of evisceration by which the bowels or heart of the victim were cut out, sometimes with the added bonus of castration for men. Whatever was left was ‘quartered’, the remains (sometimes preserved in pitch) displayed at the scene of their crimes or in local towns pour encourager les autres. Famously, heads were mounted on pikes and spears and placed on London Bridge and other public places for the same reason. Richard Duke of York’s head was notoriosuly decorated with a mocking paper crown when it was displayed at York after his defeat and capture at the battle of Wakefield in 1460. Under John Tiptoft, earl of Worcester, when he was Lord High Constable of England in the early 1460s, the practice of impaling traitors - a method Tiptoft probably became familiar with during his travels in the Holy Land - was briefly entertained but was always regarded as a barbaric innvovation and seems never to have been implemented.
The other renowned medieval method of execution was by beheading. This was always a punishment reserved for the nobility, almost certainly because it was more ‘seemly’ than the potential for humiliation that always accompanied the unpredictable process of hanging. A small insight into the sometimes truly alien quality of the medieval mind can be gained from the fact that, upon his capture by the Lancastrians and conviction for treason in 1470, John Tiptoft requested that his own decapitation be carried out with three blows of the axe ‘in honour of the Trinity’. There are many little glimpses like this that make me realise that the more I study, the less I know about these people and their world.
Execution by burning in England became infamous in the 15th and 16th centuries because it was imported from the continent as part of the shared Christian cultural assumption that it was the ‘proper’ method for killing heretics. This because of a combination of the assumption about the cleansing nature of fire and that it left no intact corporeal remains to be raised on Judgment Day. In 15th century England, Lollard and Wycliffite heretics were burned in spasmodic moral and religious panics but it was not until the great schism of the Reformation that it became, under the Tudors, a familiar outcome of trials for heresy. There was one exception to this general rule. In theory, burning was a punishment that could be applied in cases of petty treason, defined as cases where a wife or servant murdered their husband or master. In practice, it does not seem to have been widely implemented, with the rare instances of such prosecutions leading to ‘commutation’ of the notional penalty to one of death by hanging. In England, witches were never burned as witches. This was because the practice of sorcery was not illegal in itself and punishment was for the crimes that were allegedly carried out with the aid of magic. Witches in England were hanged for felonies such as murder, theft and damage to goods and livestock.
In quasi-medieval TTRPG settings the history of criminal penalties raises some of the same issues already discussed in the context of arrest and trial. Primarily these are ones of an adventuring party’s place in the world. This question is important because, as should be clear by now, the reality of medieval English punishment was that it was intimately bound up with questions of social, economic and political connections and reputation. There is here an interesting dilemma for GMs. On the one one hand, adventuring parties are generally not deeply rooted in local communities (sic) and do not spend their time farming or weaving or selling goods or attending village or town meetings. Instead they wander about the country, free and accountable to none or - thought of another way - feckless and rootless. But, on the other hand, this also means that, in a medieval setting that has a certain form and degree of verisimilitude, characters are exposed to the very real possibility that they will be friendless, the informal mechanisms of avoiding the most serious punishment denied to them. The dilemma, therefore, is balancing something like a ‘real’ medieval setting with its relationships and consequences and the perfectly reasonable expectation of most players that they are not playing a weirdly dull version of The Sims c.1450.
I’m not at all sure that I have a solution to this question. I know this is bad form. RPG blogs should generally follow the format of ‘Here’s how to insert X in your games: Three easy ways to do Y’. But the fact is that this series of discussions of late medieval English law enforcement has brought home to me the realization that these issues are so dependent on wider questions of world-building and play-style that they perhaps cannot easily be slotted into something like a conventional fantasy game. It is the case that there are a number of systems that aim to mimic a version of real-world history - one thinks of Ars Magica with its 13th century setting and the various iteratations of the Maelstrom system. There as also settings that are ‘fantastical’ but based closely on historical analogues - most consistently perhaps, Hârn. But even allowing that these systems and settings might facilitate the inclusion of historically grounded questions of the workings of crime and punishment, it remains the case that they demand a certain play-style that embraces the complexities and subtleties of a world where characters exist within a meaningful social framework.