Penal Methods of the Middle Ages: Criminals, Witches, LunaticsIves, George Burnham
History
Penal Methods of the Middle Ages: Criminals, Witches, Lunatics
Ives, George Burnham
Punishment
The exceptions to this wise though primitive rule are to be found
where occasionally “God” and even “Nature” would be cited as injured
third parties, upon theological grounds. See, for instance, N.
Marshall, _Penitential Discipline of the Primitive Church_, pp. 49,
190, Oxford, 1844; and the thirteenth-century _Mirror of Justice_,
chap. xiv.
Footnote 10:
“To keep the peace is the legislator’s first object, and it is not
easy. To force the injured man or the slain man’s kinsfolk to accept a
money compensation instead of resorting to reprisals is the main aim
of the law-giver.”—F. W. Maitland, _Constitutional History of
England_, p. 4. Cambridge, 1908.
Footnote 11:
Thus in the Laws of the XII. Tables the manifest thief would be killed
if a slave, or if free become the bondman of the person robbed; if,
however, he were captured later, he had to refund double the value of
what he had taken. By the Germanic codes a thief might be instantly
chased and then hanged or decapitated, but fines for homicide would be
imposed if he were slain after an interval. Henry Maine, _Ancient
Law_, ed. of 1906, pp. 387, 388.
Footnote 12:
For instance, Exodus xxi. 23, 24, 25.
Footnote 13:
See E. Westermarck, _Moral Ideas_, vol. i. p. 178. London, 1906.
Footnote 14:
At first it was not always necessary to accept the blood-fine. See E.
W. Robertson, _Scotland under her Early Kings_, p. 287, Edinburgh,
1862, on this point; and as to the treatment of female relatives, see
J. Thrupp, _Anglo-Saxon Home_, p. 151.
Footnote 15:
In the seventh century a law of Ine ordained that “If any one takes
revenge before he demands justice, let him give up what he has taken
to himself and pay the damage done and make bōt with xxx.
shillings.”—Thorpe, _Ancient Laws and Institutions_, fol. ed. p. 48.
Footnote 16:
“The penal law of ancient communities is not a law of crimes; it is a
law of wrongs, or, to use the English technical word, of torts. The
person injured proceeds against the wrongdoer by an ordinary civil
action, and recovers compensation in the shape of money damages if he
succeeds.”—Maine, _Ancient Law_, p. 379.
Footnote 17:
“It is curious to observe how little the men of primitive times were
troubled with these scruples (as to the degree of moral guilt to be
ascribed to the wrongdoer), how completely they were persuaded that
the impulses of the wronged person were the proper measure of the
vengeance he was entitled to exact, and how literally they imitated
the rise and fall of his passions in fixing their scale of
punishment.”—Maine, _Ancient Law_, p. 389.
Footnote 18:
“Every man’s life had its value, and according to that valuation the
value of his oath in a court of justice varied, and offences against
his person and protection were atoned for.”—Stubbs, _Const. Hist._ i.
p. 188.
Footnote 19:
A front tooth usually cost six shillings; in Alfred’s time, eight.
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