An Age of Harshness
It was an age of cruelty, and its laws were made to serve a ruthless economy, an age of shameful poverty, somber and sorrowful art, and a theology whose God had rejected Christ. To men who were mostly condemned to poverty in this world and damnation in the next, treason was an everyday matter. Murder was common among all classes. Important people wore daggers at their belts, and only the weak and helpless turned to law for redress against the injustices of the time. Crime, fed by mutual suspicion, was as frequent in the lives of ordinary people as in the plays of Shakespeare, and any Othello who suspected his wife and shrank from killing her was called a coward.
Travelers took highway robbery for granted and set out in groups. In cities that still turned night into day only with darkness, thieves were as many as prostitutes, and every house had to be a guarded fortress. At the height of Francis I's glory, a band of thieves called the "bad boys" stripped Parisians in broad daylight.
Brantome's Pickpockets
Brantome, on his usual flimsy authority, relates that Charles IX once wanted to learn "how pickpockets perform their feats," and ordered the police to invite ten of those artists to a royal ball. At the end of the feast he summoned the ten to show him their haul of money, jewels and clothing, and when he saw that the secret thefts were worth thousands, "the king nearly died of laughter." Brantome adds that Charles let them keep the fruits of their long practice but ordered them thereafter to enter military service, so that war might get rid of them.
If we count among crimes the passing off of counterfeit goods, commercial fraud and swindling, bribe-taking by courtiers, the seizure of church lands and the crossing of frontiers by the point of the spear, we must say that one European in two in that age was a thief, and that we can acquit only some of the clergy and a few honest craftsmen here and there. Add to this social background the frequent public fires, sexual violence and betrayals, and we understand what problems the police and the law then faced.
Punishment as Spectacle
These agencies of order were created more to punish crime than to prevent it. In some large cities, such as Paris, soldiers were assigned to keep the peace, and although every town and village had watchmen and guards, on the whole the police force had neither proper organization nor enough men. Politicians and legislators, tired of struggling with human nature, found it easier to punish criminals with cruel laws and to make the people take warning by watching their torture and execution. Some twenty kinds of crime carried the death penalty: murder, treason, heresy, blasphemy, witchcraft, theft, forgery, counterfeiting, smuggling, arson, perjury, certain offenses against morals, tampering with weights and measures, adulterating food, damaging another's property at night, escaping from prison, and even failing in an attempt at suicide.
Execution might end in the relatively mild act of beheading, but this was usually a privilege granted to gentlemen and gentlewomen; for commoners the penalty was the gallows. Heresy and the murder of a husband were answered with the stake, and notorious murderers were dragged, tied to horses, and then quartered. In 1531 Henry VIII passed a law by which prisoners could be boiled in water as punishment, as we, more gentle people, now do with shellfish. A mayor of Salzburg issued a decree that "a forger must burn on a pile or die in boiling water; a perjurer must have his tongue pulled out; and a servant who dishonors the daughter, wife or sister of his master shall be beheaded or hanged."
At Angers Julien Raboul, who killed her child after a hard and painful birth, was burned at the stake. And if we can accept an old story, in the same town several people were burned alive for eating meat on Friday and refusing to repent, while those who repented were merely hanged. The bodies of the executed were usually left on the gallows as a warning to the living until vultures tore and ate the flesh. For lesser crimes the flogging of the offender, man or woman, was enough; sometimes a limb such as a foot, ear or nose, or even the head was cut off, or one or both eyes were blinded, or the offender was branded with red-hot iron. Lesser misdeeds were punished by imprisonment of various grades, from reformatory prison to the dungeon, and by tortures such as the pillory, being tied to a cart and whipped, and being ducked in water by a rope. All over Europe it was usual to imprison those who could not pay their debts. On the whole the criminal laws of the sixteenth century were harsher than those of the Middle Ages and a reflection of the moral confusion of the time.
People were not disgusted by these brutal punishments, and many enjoyed attending executions and torture, and sometimes even lent a hand to the executioners. When Montecuccoli, under torture, confessed that he had poisoned, or had meant to poison, Francis, the beloved son of Francis I, his limbs were tied to four horses and his body torn apart in four directions (Lyons, 1536). According to the report, "the crowd tore the remains of his corpse to bits, cut off his nose, gouged out his eyes, smashed his jaws and dragged his head through the mud, so that he was killed a thousand times before he died."
The Blue Laws
On top of these criminal laws there was another body, the "blue laws," enforced to prevent amusements that seemed to violate piety or the common customs. Eating fish on Friday, a church rule and common law in Catholic countries, became in Protestant England under Edward VI a state law, in order to support the fishing industry and, by drawing people to the sea, strengthen the navy. Gambling has always been unlawful and widespread at once. Francis I, who knew the ways of pleasure well, ordered the arrest of everyone who played cards and dice in taverns and gambling houses (1526), but later allowed a public lottery to be set up (1539). Drunkenness was seldom prosecuted, but idleness was a crime almost punishable by death.
There were also laws restricting the newly risen class in displays of wealth, fine clothes, luxurious furnishings and even in eating and entertaining, so that certain class privileges stayed with the nobility. Luther says: "When I was a boy, all sorts of games and amusements were forbidden, so that card sellers, wandering pipers and actors were not allowed to take part in holy rites, and those who played cards or went to see plays and farces later resorted to penance to cleanse their sin." Most of these prohibitions lasted past the Reformation and reached their greatest severity in the late sixteenth century.
Law versus Practice
It was a consolation that these laws were not enforced as strictly as they were made. Evasion was easy, and with a little kindness, bribery or threat a judge or jury could be softened until many major criminals were released with a light scolding or a fine. Church law remained in force until Henry VIII, and although current laws were neglected on one side, on the other, all sorts of hard torture were used to force religious defendants to make the required confession or testimony. In this respect, although the laws of Henry VI [sic] were the strictest in English history, they were still ahead of their time, for they forbade torture entirely except where national peace and security were in danger.
Delay in trying the accused was itself a kind of torture. One complaint of the Spanish Cortes to Charles V was that even people accused of minor crimes often stayed in prison ten years waiting their turn for trial, and the trial itself might drag on twenty years more.
The Rise of the Lawyers
With the decline of the priests' influence, lawyers rose in number and power. They filled the law courts and higher tribunals, and as representatives of the middle classes took part in national assemblies and provincial parliaments; even nobles and clergy turned to them for advice on civil law. Thus a class of "nobles of the robe" or "nobles of the pen," whom Rabelais called "furred cats," arose in France. In Protestant countries church law disappeared and in the universities the study of law took the place of theology as an "instrument of resistance." In Latin countries Roman law revived and in the sixteenth century won over Germany too, while in France local codes lived on beside it. In England the "common law" prevailed over Roman law, though the Code of Justinian helped to some extent to create and maintain the despotism of Henry VI [sic].
At the court of Henry VIII the king's chaplain Thomas Starkey built the main theme of his Dialogue (about 1537) on the argument that laws should hold the king's will in check, that kings should be chosen by popular vote for a single term, and might even be deposed. A country in which everything depends on the will of one man who rules not by election but by the natural law of inheritance cannot long enjoy good government and order, he said, for those who come to the throne by inheritance seldom have the fitness for so high a post. What is more contrary to nature than a great nation under the will of one prince? What is more contrary to reason than that all the people of a nation obey one who is commonly himself without reason? It is beyond human power to make a ruler of understanding out of one who is ordinarily lacking in it. But men can, by popular vote, choose a person who is both wise and just and obey his command, and depose the other who is a tyrant.
Thomas Starkey, a year after writing the Dialogue and 334 years before its printing, died unexpectedly a natural death.