Part 37 (1/2)
With such laws it is not surprising that 72,000 men were hanged under Henry VIII, an average of nearly 2,000 a year. The number at present, when the population of England and Wales has swollen to tenfold of what it was then, is negligible. Only nine men were hanged in the United Kingdom in the years 1901-3; about 5,000 are now on the average annually convicted of felony. If anything, the punishments were harsher on the Continent than in Britain. The only refuge of the criminal was the greed of his judges. At Rome it was easy and regular to pay a price for every crime, and at other places bribery was more or less prevalent.
[Sidenote: Cruel trial methods]
The methods of trying criminals were as cruel as their punishments. On the Continent the presumption was held to be against the accused, and the rack and its ghastly retinue of instruments of pain were freely used to procure confession. Calvin's hard saying that when men felt the pain they spoke the truth merely {482} expressed the current delusion, for legislators and judges, their hearts hardened in part by the example of the church, concurred in his opinion. The exceptional protest of Montaigne deserves to be quoted for its humanity: ”All that exceeds simple death is absolute cruelty, nor can our laws expect that he whom the fear of decapitation or hanging will not restrain should be awed by imagining the horrors of a slow fire, burning pincers or breaking on the wheel.”
The spirit of the English law was against the use of torture, which, however, made progress, especially in state trials, under the Tudors.
A man who refused to plead in an English court was subjected to the _peine forte et dure_, which consisted in piling weights on his chest until he either spoke or was crushed to death. To enforce the laws there was a constabulary in the country, supplemented by the regular army, and a police force in the cities. That of Paris consisted of 240 archers, among them twenty-four mounted men. The inefficiency of some of the English officers is amusingly caricatured in the persons of Dogberry and Verges who, when they saw a thief, concluded that he was no honest man and the less they had to meddle or make with him the more for their honesty.
[Sidenote: Blue laws]
If, in all that has just been said, it is evident that the legislation of that period and of our own had the same conception of the function of government and only differed in method and efficiency, there was one very large cla.s.s of laws spread upon the statute-books of medieval Europe that has almost vanished now. A paternal statesmans.h.i.+p sought to regulate the private lives of a citizen in every respect: the fas.h.i.+on of his clothes, the number of courses at his meals, how many guests he might have at wedding, dinner or dance, how long he should be permitted to haunt the tavern, and how much he should drink, how he {483} should spend Sunday, how he should become engaged, how dance, how part his hair and with how thick a stick he should be indulged in the luxury of beating his wife.
The ”blue laws,” as such regulations on their moral side came to be called, were no Protestant innovation. The Lutherans hardly made any change whatever in this respect, but Calvin did give a new and biting intensity to the medieval spirit. His followers, the Puritans, in the next century, almost succeeded in reducing the staple of a Christian man's legitimate recreation to ”seasonable meditation and prayer.” But the idea originated long before the evolution of ”the non-conformist conscience.”
The fundamental cause of all this legislation was sheer conservatism.
[Sidenote: Spirit of conservatism] Primitive men and savages have so strong a feeling of the sanction of custom that they have, as Bagehot expresses it, fairly screwed themselves down by their unreasoning demands for conformity. A good deal of this spirit has survived throughout history and far more of it, naturally, was found four centuries ago than at present, when reason has proved a solvent for so many social inst.i.tutions. There are a good many laws of the period under survey--such as that of Nuremberg against citizens parting their hair--for which no discoverable basis can be found save the idea that new-fangled fas.h.i.+ons should not be allowed.
Economic reasons also played their part in the regulation of the habits of the people. Thus a law of Edward VI, after a preamble setting forth that divers kinds of food are indifferent before G.o.d, nevertheless commands all men to eat fish as heretofore on fast days, not as a religious duty but to encourage fishermen, give them a livelihood and thus train men for the navy.
A third very strong motive in the mind of the {484} sixteenth-century statesmen, was that of differentiating the cla.s.ses of citizens. The blue laws, if they may be so called in this case, were secretions of the blue blood. To make the vulgar know their places it was essential to make them dress according to their rank. The intention of An Act for the Reformation of excess in Apparel, [Sidenote: Apparel according to rank] pa.s.sed by the English Parliament in 1532, was stated to be,
the necessary repressing and avoiding and expelling of the excess daily more used in the sumptuous and costly apparel and array accustomably worn in this Realm, whereof hath ensued and daily do chance such sundry high and notorious detriments of the common weal, the subversion of good and politic order in knowledge and distinction of people according to their estates, pre-eminences, dignities and degrees to the utter impoverishment and undoing of many inexpert and light persons inclined to pride, mother of all vices.
The tenor of the act prescribes the garb appropriate to the royal family, to n.o.bles of different degree, to citizens according to their income, to servants and husbandmen, to the clergy, doctors of divinity, soldiers, lawyers and players. Such laws were common in all countries.
A Scotch act provides ”that it be lauchful to na wemen to weir [clothes] abone [above] their estait except howries.” This law was not only ”apprevit” by King James VI, but endorsed with his own royal hand, ”This acte is verray gude.”
Excessive fare at feasts was provided against for similar reasons and with almost equal frequency. By an English proclamation [Sidenote: 1517] the number of dishes served was to be regulated according to the rank of the highest person present. Thus, if a cardinal was guest or host, there might be nine courses, if a lord of Parliament six, for a citizen with an income of five hundred pounds a year, three. Elsewhere the number of guests at all {485} ordinary functions as well as the number and price of gifts at weddings, christenings and like occasions, was prescribed.
[Sidenote: 1526]
Games of chance were frequently forbidden. Francis I ordered a lieutenant with twenty archers to visit taverns and gaming houses and arrest all players of cards, dice and other unlawful games. This did not prevent the establishment of a public lottery, [Sidenote: 1539] a practice justified by alleging the examples of Italian cities in raising revenue by this means. Henry III forbade all games of chance ”to minors and other debauched persons,” [Sidenote: 1577] and this was followed six years later by a crus.h.i.+ng impost on cards and dice, interesting as one of the first attempts to suppress the instruments of vice through the taxing power. Merry England also had many laws forbidding ”tennis, bowles, dicing and cards,” the object being to encourage the practice of archery.
Tippling was the subject of occasional animadversion by the various governments, though there seemed to be little sentiment against it until the opening of the following century. The regulation of the number of taverns and of the amount of wine that might be kept in a gentleman's cellar, as prescribed in an English law, [Sidenote: 1553]
mentions not the moral but the economic aspect of drinking. The purchase of French wines was said to drain England of money.
Though the theater also did not suffer much until the time of Cromwell, plays were forbidden in the precincts of the city of London. The Book of Discipline in Scotland forbade attendance at theaters. [Sidenote: 1574] Calvin thoroughly disapproved of them, and even Luther considered them ”fools' work” and at times dangerous.
Commendable efforts to suppress the practice of duelling were led by the Catholic church. Clement {486} VII forbade it in a bull, [Sidenote: 1524] confirmed by a decree of Council of Trent. [Sidenote: 1563] An extraordinarily worded French proclamation of 1566 forbade ”all gentlemen and others to give each other the lie and, if they do give each other the lie, to fight a duel about it.” Other governments took the matter up very sluggishly. Scotland forbade ”the great liberty that sundry persons take in provoking each other to singular combats upon sudden and frivol occasions,” without license from his majesty.
Two matters on which the Puritans felt very keenly, [Sidenote: 1551]
blasphemy and Sabbath-breaking, were but scantily looked after in the century of the Reformation. Scotland forbade ”grievous and abominable oaths, swearing, execrations and blasphemation,” and somewhat similar laws can be found in other countries. Scotland was also a pioneer in forbidding on the Sabbath all work, ”gaming, playing, pa.s.sing to taverns and ale-houses and wilful remaining away from the parish kirk in time of sermon.”
[Sidenote: Mail]
Government has other functions than the enforcement of the civil and criminal law. Almost contemporary with the opening of the century was the establishment of post offices for the forwarding of letters. After Maximilian had made a start in the Netherlands other countries were not slow to follow his example. Though under special government supervision at first these letter-carriers were private men.
[Sidenote: Sanitation]
In the Middle Ages there had been efforts to safeguard public sanitation. The sixteenth century did not greatly improve on them.
Thus, Geneva pa.s.sed a law that garbage and other refuse should not be allowed to lie in the streets for more than three days in summer or eight days in winter. In extreme cases quarantine was adopted as a precaution against epidemics.