With the Supreme Court nicely toying once again about who is to live and who is to die as it considers the death penalty for juveniles and as the American casualties in Iraq yesterday included three teenagers, it is well past the time to chop legal logic, or merely vote for the dime’s worth of difference between Bush-Kerry troop levels.
Turning a forgotten page from the annals of time, let us review a selection from the thirteenth century London fishmonger, Andrew Horn, whose underground classic, The Mirror of Justices, was not printed until 1642 nor translated until 1646, those revolutionary years preceding the beheading of the sovereign.
Though written in French, the language of the feudal masters, Andrew Horn praised King Alfred whose chagrined submission to the scolding of the housewife, after he forgot to take the bread out of the oven in time to prevent its burning, endeared him to successive generations of cooks, bakers, and humble folk. (What was he doing in her kitchen in the first place? Apparently, he was in hiding having run away from battle.) Horn brings forth other reasons why this monarch, bad baker and reluctant soldier though he was, alone among all England’s kings and queens, is called great.
F.W. Maitland, Horn’s Victorian editor (Selden Society Publications, volume seven, 1893), noted his “curious leanings towards liberty and equality.” He argued that Horn’s understanding of the memory of Alfred among the indigenous English was a “daring fable.” As reasons, Maitland sees circumspection in the naming of the judges, and surely the names are weird, not the kind of names that we recognize as normal, like Thomas, Scalia, or Rehnquist.
Horn attributes to Alfred the policy of lex talionis which in our day has become a sly accompaniment to prosecutorial blood-thirstiness, sadly saying that capital punishment is part of the ‘grieving process’ for the victims of violent crimes. Slay the young: that the old may ‘move on.’
So from Book V of The Mirror of Justices here is abuse number 108 (pp. 166-9).
“It is an abuse that justices and their officers who slay folk by false judgments are not destroyed like other homicides. And King Alfred in one year had forty-four judges hanged as homicides for their false judgments.
“He hanged Watling, for that he had judged Sidulf to death for receiving Edulf his son, who was afterwards acquitted of the principal crime
“He hanged Signer, who had judged Ulf to death after a sufficient acquittal.
“He hanged Eadwine, for that he judged Hathewy to death without the assent of all the jurors when he had put himself upon a jury of twelve men; and because three against nine were for saving him, Eadwine removed those three and put in their stead other thjree, upon whom Hathewy had never put himself.
“He hanged Coel for judging to death Yve, who was a lunatic.
“He hanged Malmere for judging to death Prat, who, when desperate, had made a false confession of felony.
“He hanged Athulf for hanging Copping, who was under the age of twenty-one years.
“He hanged Markes, for that he judged Duning to death upon the verdict of twelve men who had not been sworn.
“He hanged Oscelin, foR that he judged Seaman to death under a vicious warrant founded on a false suggestion, which supposed that Seaman was in prison before that he really was so.
“He hanged Billing, for that he judged Lefston to death by fraud in this manner. Billing said to the people, ëSit down all of you who did not kill the man;’ and then, because Lefston did not sit down with the rest, he commanded that he should e hanged, and said that he had made a sufficient confession by not sitting down.
“He hanged Sefoul, for that he judged Ording to death for want of an answer.
“He hanged Thurstan, for that he judged Thurgnor to death on a verdict taken ex officio on which Thurgnor had not put himself.
“He hanged Athelstone, for that he judged Herbert to death for a sin that was not mortal.
“He hanged Rumbold, for that he judged Lifchil tto death in a case that was not notorious, without appeal or indictment.
“He hanged Rof, for that he judged Dunston to death for escape from prison.
“He hanged Freberne, for that he judged Harpin to death when the jurors were in doubt about their verdict, for in case of doubt one should rather save than condemn.
“He hanged Sibright, for that he judged Athelbrus to death for that he would not execute on of his (Sibright’s) false mortal judgments.
“He hanged Hale, for that he saved from death Tristram the sheriff, who had taken wine for the king’s use, because between taking what is another’s without his will and robbery there is no difference.
“He hanged Arnolt, for that he saved bailiffs who robbed folk by color of distress, some of them by alienating naams and others by extortion of fines, because between the extortion of a fine for the release of a naam and robbery there is no difference.
“He hanged Erkenwold, for that he hanged Franling for no other cause than because he taught one whom he had vanquished in battle to say the word ëcraven.’
“He hanged Bemond, for that he had Garbolt’s head cut off by a judgment given in England on an outlawry in Ireland.
“He hanged Alkemund, for that he saved Cateman, who was attainted for hamsoken, by treating it as a mere case of disseisin.
“He hanged Saxmund, for that he hanged Berild in England where the king’s writ ran, for a deed done in a part of the same land in which the king’s writ did not run.
“He hanged Alflet, for that he adjudged to death a clerk over whom he could have no cognizance.
“He hanged Piron, for that he judged Hunting to death, because he caused a judgment to be executed before the fortieth day, pending an appeal to the king by writ of false judgment.
“He hanged Dilling for hanging Edous, who had slain a man by misadventure.
“He hanged Oswy, for that at night time he judged Blithe to death.
“He hanged Osbert, for that when not in a consistory he judged Fulcher to death.
“He hanged Horn, for that on a prohibited day he hanged Swein.
“He hanged Bulmer, for that he judged Gerent to death for the larceny of a thing that he had received by bailment.
“He hanged Thurbern, for that he judged Osgot to death for a deed of which he had already been acquitted as against the same plaintiff; and Osgot offered to aver the acquittal by a jury, and Thurbern would not receive the allegation of acquittal because Osgot did not offer to aver it by the record.
“He hanged Wolfston, for that he judged Hubert to death at the king’s suit for a deed which Hubert had confessed, whereas the king had pardoned his suit; but Hubert had no charter of pardon, but vouched the king to warranty, and in addition offered to aver the pardon by the enrolment in the chancery.
“He hanged Osketil, for that he judged Culling to death on the record of the coroner, where an allowable replication was not allowed him. The case was this: Culling was taken and tortured until he confessed a mortal sin, and this he did to be quit of further torture; and Osketel [sic] judged him to death on his confession made to the coroner, without trying the truth of the allegation as o the torture and the other facts.
“And besides this, the coroners, officers, assessors, and those who tortured folk, and those who could have disturbed the false judgments but did not do so, were hanged whenever the justices were hanged, for King Alfred hanged all the judges whom he could attaint of having falsely saved a guilty man from death, or falsely hanged folk against law or in the teeth of a reasonable exception.”
PETER LINEBAUGH teaches history at the University of Toledo. He is the author of two of CounterPunch’s favorite books, The London Hanged and (with Marcus Rediker) The Many-Headed Hydra: the Hidden History of the Revolutionary Atlantic. He can be reached at: email@example.com