II. LAW

It was a cruel age, and its laws corresponded to a pitiless economy, a shameful pauperism, a somber art, and a theology whose God had repudiated Christ.

Among populations mostly fated to poverty here and damnation hereafter, crime was natural. Murder was plentiful in all classes. Every man of caliber dangled a dagger, and only the weakling relied on the law to redress his wrongs. Crimes of passion were as frequent in life as in Shakespeare, and any Othello who failed to slay his suspected wife was rated less than a man. Travelers took highwaymen for granted, and proceeded in groups. In the cities, still unlit at night, robbers were as plentiful as prostitutes, and a man’s home had to be his castle. In the heyday of Francis I a gang of thieves called mauvais garçons despoiled Paris in full sunlight. Brantôme tells us, as unreliably as usual, how Charles IX, wishing to learn “how the cut-purses performed their arts,” instructed his police to invite ten such artists to a royal ball; after the ball was over he asked to see their spoils; the money, jewelry, and garments unostentatiously acquired by them during the evening amounted to many thousands of dollars’ worth, “at which the King thought he would die of laughter.” He allowed them to keep the fruit of their studies, but had them enrolled in the army as better dead than alive.13 If we classify as crimes the adulteration of goods, the chicanery of business frauds, the bribery of courts, the seizure of ecclesiastical property, the extension of frontiers by conquest, every second man in Europe was a thief; we may give some the benefit of clergy, and allow for an honest craftsman here and there. Add a little arson, a little rape, a little treason, and we begin to understand the problems faced by the forces of order and law.

These were organized to punish, rather than to prevent, crime. In some large towns, like Paris, soldiers served as guardians of the peace; city blocks had their wardens, parishes their constables; but by and large the cities were poorly policed. Statesmen weary of fighting the nature of man reckoned it cheaper to control crime by decreeing ferocious penalties, and letting the public witness executions. A score of offenses were capital: murder, treason, heresy, sacrilege, witchcraft, robbery, forgery, counterfeiting, smuggling, arson, perjury, adultery, rape (unless healed by marriage), homosexual actions, “bestiality,” falsifying weights or measures, adulterating food, damaging property at night, escaping from prison, and failure in attempted suicide. Execution might be by relatively painless beheading, but this was usually a privilege of ladies and gentlemen; lesser fry were hanged; heretics and husband-killers were burned; outstanding murderers were drawn and quartered; and a law of Henry VIII (1531) punished poisoners by boiling them alive,14 as we gentler souls do with shellfish. A Salzburg municipal ordinance required that “a forger shall be burned or boiled to death, a perjurer shall have his tongue torn out by the neck; a servant who sleeps with his master’s wife, daughter, or sister shall be beheaded or hanged.”15 Julienne Rabeau, who had killed her child after a very painful delivery, was burned at Angers (1531);16 and there too, if we may believe Bodin, several persons were burned alive for eating meat on Friday and refusing to repent; those who repented were merely hanged.17 Usually the corpse of the hanged was left suspended as a warning to the living, until the crows had eaten the flesh away. For minor offenses a man or a woman might be scourged, or lose a hand, a foot, an ear, a nose, or be blinded in one eye or both, or be branded with a hot iron. Still milder misdemeanors were punished by imprisonment in conditions varying from courtesy to filth, or by the stocks, the pillory, the whipping-cart, or the ducking stool. Imprisonment for debt was common throughout Europe. All in all, the penal code of the sixteenth century was more severe than in the Middle Ages, and reflected the moral disorder of the time.

The people did not resent these ferocious punishments. They took some pleasure in attending executions, and sometimes lent a helping hand. When Montecucculi confessed, under torture, that he had poisoned, or had intended to poison, Francis, the beloved and popular son of Francis I, he was dismembered alive by having his limbs tied to horses which were then driven in four directions (Lyons, 1536); the populace, we are told, “cut his remains into little morsels, hacked off his nose, tore out his eyes, broke his jaws, trained his head in the mud, and ‘made him die a thousand times before his death.’”18

To the laws against crime were added “blue laws” against recreations supposedly infringing upon piety, or innovations too abruptly deviating from custom. Fish-eating on Friday, required by common law in Catholic lands, was required by state law in the Protestant England of Edward VI to support the fishing industry and so train men to the sea for the navy.19 Gambling was always illegal and always popular. Francis I, who knew how to amuse himself, ordered the arrest of people who played cards or dice in taverns or gaming houses (1526), but he allowed the establishment of a public lottery (1539). Drunkenness was seldom punished by law, but idleness was almost a capital crime. Sumptuary laws—designed to check conspicuous expenditure by the newly rich, and to preserve class distinctions—regulated dress, adornment, furniture, meals, and hospitality. “When I was a boy,” said Luther, “all games were forbidden, so that card-makers, pipers, and actors were not admitted to the sacraments; and those who had played games, or been present at shows or plays, made it a matter of confession.”20 Most such prohibitions survived the Reformation, to reach their peak in the later sixteenth century.

It was some consolation that enforcement was rarely as severe as the law. Escape was easy; a kindly, bribed, or intimidated judge or jury let many a rascal go lightly punished or scot free. (“Scot” originally meant an assessment or fine.) The laws of sanctuary were still recognized under Henry VIII. However, laxity of enforcement was balanced by frequent use of torture to elicit confessions or testimony. Here the laws of Henry VIII, though they were the severest in the history of England,21 were ahead of their time; they forbade torture except where national security was held to be involved.22 Delay in trying an indicted person could also be torture; one complaint of the Spanish Cortes to Charles V was that men charged with even slight offenses lingered in prison as long as ten years before being tried, and that trials might drag on for twenty years.23

Lawyers bred and multiplied as the priesthood declined. They filled the judiciary and the higher bureaucracy; they represented the middle classes in the national assemblies and the provincial parlements; even the aristocracy and the clergy depended on them for guidance in civil law. A new noblesse de robe—the “furred cats” of Rabelais—formed in France. Canon law disappeared in Protestant countries, and jurisprudence replaced theology as the pièce de résistance in universities. Roman law sprang back to life in Latin countries, and captured Germany in the sixteenth century. Local law survived alongside it in France, “common law” was preferred to it in England, but the Justinian Code had some influence in shaping and sustaining the absolutism of Henry VIII. Yet in Henry’s own court his chaplain, Thomas Starkey, composed (c. 1537) a Dialogue whose main theme was that laws should dictate the will of the king, and that kings should be subject to election and recall:

That country cannot long be well governed, nor maintained with good policy, where all is ruled by the will of one not chosen by election but cometh to it by natural succession; for seldom seen it is that they which by succession come to kingdoms and realms are worthy of such high authority... What is more repugnant to nature than a whole nation to be governed by the will of a prince?... What is more contrary to reason than all the whole people to be ruled by him which commonly lacketh all reason?... It is not man that can make a wise prince of him that lacketh wit by nature.... . But this is in man’s power, to elect and choose him that is both wise and just, and make him a prince, and him that is a tyrant so to depose.24

Starkey died a strangely natural death a year after writing his Dialogue—but 334 years before it reached print.

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