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The Medieval Blood Sanction and the Divine Beneficence of Pain: 1100 - 1450 Trisha Olson*

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The Medieval Blood Sanction and the Divine Beneficence of Pain: 1100 - 1450 Trisha Olson* The Medieval Blood Sanction and the Divine Beneficence of Pain: 1100 - 1450 Trisha Olson* Here the worldling now all bound in fetters lies starts to fear his God, his tears flow from his eyes Justice comes along, with gallows, wheel and sword: God tells the pious man to enter Heaven’s door.1 Across medieval western Europe those who committed serious wrongs, such as homicide, arson, treason, and rape were subject to a wide range of capital punishments that were seemingly brutal, frequently bloody, and at times spectacular. Grisly images of an executioner dismembering a condemned’s limbs from his torso, smashing his chest cavity, gouging his eyes, or piercing his body with hot pokers are the common subject of scaffold art in the high middle ages.2 Such images attest to the critical role of pain in medieval capital punishment. Whereas in our day all attempts are made to render penal death painless, in the high and late middle ages the tie between pain and death is not only tolerated but purposefully exacerbated. Other forms of punishment did exist. While imprisonment rarely was awarded for serious crime,3 in some parts of Europe a serious offender might escape the gallows by paying a * Visiting Associate Professor of Law, Albany Law School (2004-2005); Yale Law School, 1991. I owe gratitude to my daughter Alena Alma Marie. Much thanks is also owed to Professors, Thomas A Green, Richard H. Helmholz, Daniel Klerman, Timothy Lytton and Dr. Richard Fraher for their invaluable thoughts and criticisms of an earlier draft of this article. 1 Anon., Des bekannten Diebes, Morders und Raubers Lip Tullians, und seiner Complicen Leben und Ubelthaten. (Dresden, 1716) (discussed and translated in Richard Evans, Rituals of Retribution: Capital Punishment in Germany (Oxford, 1996), p.97. 2 Lionello Puppi, Torment in Art: Pain, Violence and Martyrdom (New York, 1991), pp. 1-50. 3Ralph Pugh, Imprisonment in Medieval England (Cambridge, 1968); Jean Dunbabin, Captivity and Imprisonment in Medieval Europe (New York, 2002) are the two major works on medieval imprisonment. Ecclesiastical imprisonment for wayward monks or nuns functioned as 1 hefty fine, or by abjuring the realm as a result of being exiled or of promising to make pilgrimage.4 So too, a vast array of impediments to capital punishment were available. Procedural delays at trial were relatively easy to obtain. And those who had committed serious wrong could save life and limb by availing themselves of sanctuary, applying to the king for a pardon, or invoking the claim of benefit of clergy. Still, a convicted felon could find himself on the gallows or hoisted upon the wheel where he was likely to undergo intense physical suffering. It is with this experience of penal pain that this paper is concerned. The aim of this enquiry is to trace those conditions of thought which situated the medieval blood sanction as an appropriate response to serious wrongdoing. Accordingly, and contrary to scholars such as Elaine Scarry who argue for a naturalistic understanding of pain whereby its experience is an accepted practice within the monasteries by the beginning of the eleventh-century. In the secular realm, from the early twelfth-century in England imprisonment was used not only for custodial and coercive purposes, but for punishment as well. Thus, for example, those who had failed to carry through on the prosecution of an appeal might find themselves in gaol or Tower. Glanvill, The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill, trans. G.D. Hall (Oxford, 1994), p. 21. So too, in Bracton’s day, an appellant offering trial by battle and withdrawing on the field was sent to prison, though recommended to mercy. Henry Bracton, On the Laws and Customs of England, trans. S. Thorne (4 vols, Cambridge, 1968), vol.2, p. 401. While such confinements were coercive, often they contained a penal element. For example, the length of sentence was often indefinite or in cases of definite sentences the release was not conditioned upon the prisoner meeting an obligation such as the payment of debt or carrying through with a prosecution. Pugh, Imprisonment, pp. 5-9. The same can be said of the Continent. As in England, rulers used imprisonment as an alternative to a blood sanction when the wrongdoer was thought to be too politically important to be punished in the usual way. Dunbabin, Captivity, p. 100. Occasionally coercive imprisonment could also carry a penal aspect. Still, from the twelfth to the fifteenth-century secular courts punished by imprisonment only on an ad hoc basis. 4 Trevor Dean, Crime in Medieval Europe (London, 2001), pp. 118-144. 2 actively destructive of language and the world,5 this article argues that the experience of pain in punishment can only be understood as a happening in a historical world. Thus what punitive pain signifies, its rhyme and reason, indeed its experiential shape, depends upon the cultural sensibility of a given age. As legal historians note, the period from the twelfth to the fifteenth-century witnesses a dramatic change in the way that medieval men and women viewed serious wrongdoing.6 Whereas in the central middle ages, crimes such as homicide, arson, and theft were typically considered to be private wrongs that entitled the victim or his kin to demand compensation or to engage in a blood feud, beginning in the twelfth-century serious wrongdoing came to be seen as an offense against a community and subject to the infliction of punishment.7 Over the centuries, as this new conception of serious wrong takes hold, the punishments that attach to crime steadily increase in severity. Historians see this trend as the outcome of a preventative jurisprudence. “Cruel punishment taught a lesson . .to the populace at large. The sight of punishment deterred crime.”8 Yet, as other historians note, a hallmark of medieval dispute resolution – in both the 5 Elaine Scarry, The Body in Pain: The Making and Unmaking of the World (New York, 1985), p. 13. 6 Frederick Pocock, “The King's Peace in the Middle Ages,” Harv. L. Rev. 13 (1900), p. 177; J.H. Baker, An Introduction to English Legal History (3d. ed. 1990), p. 571. Patrick Wormald has argued that this movement occurred earlier than Henry II's reforms, where most historians place it. He argues that in late Anglo-Saxon law there was already a move from compensation to penalty by the King's hand. Patrick Wormald, “Frederic William Maitland and the Earliest English Law,” Law & Hist. Rev. 16 (1998), p. 16. 7 Michael Weisser, Crime and Punishment in Early Modern Europe (New Jersey, 1979), pp. 52-67; Dean Crime, pp 125-126. 8 Dean, Crime, p. 126. 3 civil and criminal spheres – was a belief in the importance of concord and reconciliation.9 Diverse practices and procedures such as the royal pardon, the privilege of sanctuary and the high acquittal rate of the English jury (to name but a few) all found justification in the belief that the aim of justice, criminal or otherwise, was to restore right relations between a wrongdoer and those he had offended individually and as a community.10 This paper argues that while one cannot discount the language of deterrence that crops up in assorted sources, the cultural acceptance of the blood sanction lay less with such utilitarian concerns and more with that set of conciliatory principles that informed dispute resolution more widely. The ideal of concord, in turn, was shot through with spiritual meaning. It both shaped and shaded the medieval view of punitive pain. As Roselyne Rey notes, within medieval Christendom, bodily pain possessed an affirmative and positive meaning as that which was to be endured as a divine gift, as a sacrificial offering that allowed the one suffering to share in Christ’s passion, or as a sign of purgation that offered the hope of man’s redemption.11 This 9 See e.g. Richard Firth Green, A Crisis of Truth (Philadelphia, 1999), pp.81-83; Paul Hyams, “Trial By ordeal: The Key to Proof in the Early Common Law,” On the Laws and Customs of England: Essays in Honor of Samuel Thorne eds. M Aronold, T. Green, & S Scully (1981), p. 98; Michael Clanchy, “Law and Love in the Middle Ages,” Disputes and Settlements: Law and Human Relations in the West, ed. John Bossy (1983); Trisha Olson, “Of Enchantment: The Passing of the Ordeals and the Rise of the Jury Trial,” Syracuse Law Review 50 (2000), pp. 138-141; T Kuehn, “Arbitration and law in Renaissance Florence,” Renaissance and Reformation 23 (1987), pp. 289-92 10 Thomas A Green, Verdict According to Conscience (Chicago, 1985), pp. 1-30 (on jury nullification); Naomi Hurnard, The King’s Pardon for Homicide Before A.D.1307, (Oxford, 1969), is the only full treatment of the prerogative in English in this period. For the Tudor period see K.J. Kesselring, Mercy and Authority in the Tudor State, (Cambridge, 2003). For France see Claude Gauvard, “De Grace Especial,” Crime, etat et Societe in France a la fin du Moyen Age (Paris, 1991). On sancruary see Trisha Olson, “Of the Worshipful Warrior: Sanctuary and Punishment in the Middle Ages,” St. Thomas Law Review 16 (2004), pp 494-496. 11 Roselyn Rey, The History of Pain (London, 1995), p. 49. 4 same cluster of beliefs informed medieval punishment even in its most excruciating and sanguinary form. In the realm of the schoolmen, in the cloister of the mystic, within the poetic imagination, and in the space of the execution where men and women came to witness the death of the condemned, one encounters the conviction that his torment opened rather than closed a path to conciliation.
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