but of all who were rich enough to make it worth their while." I

If the criminal quality of an action depends upon its punishment by society as a wrong against itself, then actions which society customarily leaves unpunished, for whatever cause, are not crimes, no matter how bad they may be in themselves, no matter how many laws are enacted to suppress them. Only when society both wills to punish and succeeds in inflicting punishment upon a considerable proportion of offenders, does the evil action become a crime. In the fourteenth and fifteenth centuries the laws against maintenance and livery were not, and could not be, generally enforced, and consequently the lords who broke the laws were not criminals any more than would be the supporters of a successful revolution; as for example the American Revolution of 1775. For the same reason the ruffians and malefactors whom their lords preserved from well-merited social punishment cannot rightly be called criminals, and the enlarged benefit of clergy must have shielded many more such, both in and out of holy orders.

Outside these acts of private war and legally or forcibly protected evil doing, there was peace in the country at large, and in the cities, "judging by our own standard, very little crime, . . . very few cases are reported in the city records." Hanging was the punishment for murder, burglary, highway robbery and gross theft, but in the city of London Rolls and Letter Books of the first half of the fourteenth century there are practically no heavy offences recorded, save one case of highway robbery, for which the man was hanged. Assault Stubbs, ii, 640.

The amount of social punishment required to make an action criminal cannot be expressed by percentages. It must be sufficient to establish a reasonable expectation in the minds of the community that offenders will be brought to justice. Traill, ii, 270.

• Ibid., ii, 120.

190

Fourteenth Century London

cases were somewhat frequent, but "till late in the seventeenth century the most violent crimes against the person were treated simply as misdemeanors, punishable with fine and imprisonment." This, to us, extraordinary leniency, shows that society for many centuries regarded such acts as highly natural and hardly criminal. When punished at all they were generally treated as torts, not crimes. In 1311 the Londoners made a clean sweep of common roarers, roisterers, bruisers, night-walkers against the peace, and users of false dice." There were also a considerable number of other misdemeanors in fourteenth century London, punished usually by confinement in the pillory or stocks. Some of these acts are now regarded as most serious crimes; for example, certain kinds of forgery and child-stealing. The laws of that period abound in regulations of the pettiest details of business. Light weight bread, bad dough, and many other little business frauds were frequently punished, by pillory, fines and forfeiture of the goods, a large part of the mulct going to the party who brought the suit. Thus the offence partook largely of the nature of a tort.3

The evils of forestalling and regrating were made the subject of very many statutes. Forfeiture and imprisonment were decreed against such conduct, but the laws themselves "recite" how former statutes "have been found deficient." From the reign of Richard II. there were acts against unlawful games and gaming, with penalties of imprisonment and

Stephen, iii, 109 (for evidence).

Riley, Memorials, p. 86. Elmer de Multone and several other “roarers" were indicted about this time.

3

3 (12 Edw. II., c. 6) for “assize of wine and victuals;” (13 Rich. II., Stat. 1, c. 8) for assizes of bread and ale; (51 Hen. III., Stat. 6) bakers transgressing assize. (11 Edw. III., c. 3), (25 Edw. III., Stat. 3), and many other statutes regulate butter and cheese, clothes, etc. (1⁄2 mulct to party suing). (7 Hen. IV., c. 7) arrow heads; (23 Hen. VIII., c. 4, § 2) beer and beer barrels. '5 and 6 Edw. VI., c. 14.

increasingly heavy fines, given in part to the person suing. Some of these laws were intended to foster the practice of archery, deemed necessary for the safety of the nation, but how well they were enforced we do not know.' Sumptuary laws, "against the outrageous and excessive apparel of divers people," in all grades of social life are very numerous. Offenders were to "forfeit to the king all the apparel they have worn against this ordinance," thus presenting to our minds a picture of the king of England as dealer in secondhand clothes. Later, money penalties were added, but the laws could not be enforced, and successive statutes for centuries relate how "the commons of the realm, men and women, have worn and daily do wear, excessive" and inordinate array. Finally an act of James I. repealed all this mass of useless legislation, vainly intended to make the wearing of expensive clothing criminal. Other misdemeanors punished by the Londoners were, pretending to be a physician, practicing sorcery, magic or soothsaying, being a procuress or a common scold, and counterfeiting the licensed begging poor.*

Beside civil court misdemeanors, there were a multitude of more or less common offences regarded as sins and coming under the jurisdiction of the ecclesiastical courts, whose judgments were notoriously mild, though their procedure was thoroughly inquisitorial. Among the most important are heresy, blasphemy, neglect of church services and ecclesiastical ceremonies, contempt of the clergy, and neglect by the clergy of clerical duty, perjury, defamation, witchcraft,

1 (Ric. II., c. 6), (11 Hen. IV., c. 4), (17 Edw. IV., c. 3), and one each under Hen. VII., Hen, VIII., Ph. and M., Chas. II. and Anne.

2 37 Edw. III., c. 8 to c. 14.

* 3 Edw. IV., c. 5.

4 Riley, Memorials, p. 385.

A very common offence apparently. See Stephen, ii, 404-5.

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Perjury not a Crime

breach of faith, drunkenness, common bad language and every form of incontinence. Most of the business transacted by these courts was unimportant from the criminal standpoint. Out of 1854 cases cited before the ecclesiastical courts of the city of London, from 1496 to 1500,"one-half were charged with the crime of adultery and others of like nature." The punishments were excommunication, penance and imprisonment, by writ from the king's chancery.2

On the whole the London of that age does not seem to have been a very criminal place, if we accept the Londoners' own standard of criminality. Of course the population was small, not more than 40,000 to 50,000 people; while the total for all England was only about 2,500,000. Some of the offences taken cognizance of by the canon and the common law in fourteenth century England were very far from being crimes. Thus, perjury was practically unpunished. Our ancestors could perjure themselves with impunity. "It was," writes Hallam, "one of the most characteristic vices of the Middle Ages." The only perjury punishable by the old common law was that of jurors, who were also at that time witnesses; and for several centuries the Year Books contain no reference to this offence. All other perjury was regarded as sin, an offence in ecclesiastical courts alone. But to be known as "a common swearer before the ordinary," by the absurdly antiquated system of compurgation still in use in these courts, was quite sufficient to brand a man as a common liar. It does not seem just, therefore, to call perjury a crime in those days.3 As to

1 See Hale.

'The coercive jurisdiction of the ecclesiastical courts was recognized and confirmed by the legislature a number of times. For the 14th century, see (9 Edw. II., Stat. 1), 1315; (15 Edw. III., c. 5); (31 Edw. III., c. 11).

3 Hobart, "Searl vs. Williams," p. 291, states that the old common law procedure had made perjurers of "witnesses, compurgators and jurymen," and that "the judge himself was not clear." Hobart declares that 18 Eliz., c. 7. utterly abolished purgation, whereby "sundry perjuries and other abuses were avoided."

other offences common and severely punished later, we know that libel then attracted very little attention,' while the most violent harms to the person were very little regarded. There was a remote possibility of their punishment with fine and imprisonment, as misdemeanors, but they were so very common and seemed so natural that people probably thought of them more as they have, till very recently, thought of drunkenness, rather than as serious offences. As for attempts to commit crime, they were practically unpunished until Tudor times.3

Summary. The fourteenth and fifteenth centuries were a period of marked constitutional progress, but of great degradation and weakness in the administration of justice, of increasing anarchy and corruption, of moral decay. Parliament to some extent succeeded in safeguarding the new development of government by the people, by holding the king and ministers of state rigidly responsible to the nation for their actions, and punishing them as criminals when they broke the laws. The representatives of the people fully realized the necessity for suppressing organized anarchy and making justice sure and equal, but their government was too weak to enforce the many statutes aimed at these abuses. The laws remained dead letters, and consequently the acts they were directed against were not crimes. Parliament attempted to punish, and to some extent probably succeeded in punishing as criminal the rise of the working classes to individual liberty, the introduction of competitive wages and competitive prices. In so doing it opposed the nation's true development. Thus, for many reasons, parliamentary government earned its downfall. But, despite successful anarchy and in

1 Coke mentions but two cases after his exhaustive study of the records. Stephen, ii, 302.

2 Stephen, iii, 109.

'In 1340 Englishry was abolished. Sac (14 Edw. III., Stat. I, c. 4).