Corporal Punishment subsisted during the first five centuries of the Christian aera under its most usual forms, as a social degradation, but the liability to it was afterwards greatly extended.
I. Civil. — The equality before the law which might have been reached through the extension of Roman citizenship had been by no means attained, but the character of that prerogative itself had become debased, and the exemption from corporal punishment, which still fluttered, like a last rag of the toga, on the shoulders of the civic officers, had already been blown off for some. There were decurions who had been flogged, and decurions who could be flogged. Exemption was, indeed, growing to be a privilege attached to the mere possession of wealth. Thus delation, if proved false, or where the delator did not persevere, should he be of mean fortune, which he did not care to lose, was to be punished with the sharpest flogging. Among the offences which entailed corporal punishment, besides the one already mentioned, may be named false witness. The use of it multiplied, indeed, as the character of the people became lowered, and the Novels are comparatively full of it. The eighth enacts flogging and torture against the taking of money by judges; the one hundred and twenty-third punishes with "bodily torments" those persons, especially stageplayers and harlots, who should assume the monastic dress or imitate or make a mock of Church usages; the one hundred and thirty-fourth enacts corporal punishment against those who detained debtors' children as responsible for their father's debt, or who abetted illegal divorces, and requires the adulterous wife to be scourged to the quick. On the other hand, a husband chastising his wife, otherwise than for conduct for which he might lawfully divorce her, was by the one hundred and seventeenth Novel made liable to pay to her, during coverture, the amount of one third of the ante-nuptial gift. The last chapter of the one hundred and thirty-fourth Novel, indeed, professes to inculcate moderation in punishment, and enacts that from henceforth there shall be no other penal mutilation than the cutting off of one hand, and that thieves shall only be flogged. Already, under Constantine, it had been enacted (A.D. 315) that branding should not be in the face, as disfiguring "the heavenly beauty," a law in which the influence of Christian feeling upon the first Christian emperor is strikingly displayed.
Passing from the legislation of the East to that of the West, we find on the whole a very similar course of things. Among the ancient Germans, according to the account of Tacitus, corporal punishment was rare. He notes as a singularity that, in war, none but the priest was allowed to punish, bind, or even strike a soldier. A husband might, indeed, flog his adulterous wife naked through the streets; but otherwise even slaves were rarely beaten.
Among the Anglo-Saxons corporal punishment seems in general to have been confined to slaves, as an alternative for compensation, wherewith the slave "redeemed" or "paid the price of his skin," as it is expressed; e.g. for sacrificing to devils (A.D. 691-725), for working on Sundays (A.D. 688- 728). In certain cases of theft the accuser himself was allowed to flog the culprit. A foreigner or stranger wandering out of the way through the woods, who neither shouted nor blew the horn, was to be deemed a thief, and to be flogged or redeem himself.
Capital punishment is again prominent in the Capitularies. The first Capitulary of Carloman (A.D. 742), imposes two years' imprisonment on a fornicating priest, after he has been scourged to the quick. The Capitulary of Metz, 755, following a synod held at the same place, enacts that for incest a slave or freedman shall be beaten with many stripes, as also any "minor" cleric guilty of the like offence. The same enactment, confined to the case of marrying a cousin, and in slightly different language, occurs elsewhere in the general collection. A savage one on conspiracies (A.D. 805) is added to the Salic law, enacting that where conspiracies have been made with an oath — the principal suffering death — the accessories are to flog each other and cut each other's noses off; even if no mischief shall have been done, to shave and flog each other. For conspiracies without an oath, the slave only was to be flogged, the freeman clearing himself by oath or compounding. The same law occurs in the General Capitularies. Another law enacts public flagellation and decalvation for the slave marrying within the seventh degree of consanguinity, and there is also embodied much of the rigorous Visigothic Code as towards the Jews, who are to be decalvated and receive one hundred lashes publicly if they marry within the prohibited degrees. The Visigothic provision against marrying without priestly benedictions, or exceeding in any wise the laws as to dowry, is by this extended to Jews as well as Christians.
II. Ecclesiastical. — Here, indeed, we find at first a much higher standard than that of the civil law. Among the persons whose offerings the Apostolic Constitutions require to be rejected are such as "use their slaves wickedly, with stripes or hunger, or hard service." Soon, however, a harsher law must have prevailed. The Council of Elvira (A.D. 305), enacted that if a mistress, inflamed by jealousy, should so flog her handmaid that she should die within three days, she is only to be admitted to communion after seven years' penance (unless in case of dangerous illness), if the act were done wilfully, or after fine, if death were not intended — a provision which speaks volumes indeed of the bitterness of Spanish slavery at this period, but which nevertheless shows the Church taking cognizance of the slave-owner's excesses, and endeavoring to moderate them by its discipline, at least in the case of women. On the other hand, the right of personal chastisement was often arrogated by the clergy themselves, since the Apostolic Canons enact that a bishop, priest, or deacon, striking the faithful who have sinned, or the unfaithful who have done wrong, seeking thereby to make himself feared, is to be deposed, and Augustine clearly testifies to the fact of corporal punishment being judicially inflicted by bishops, in a letter to the praefect Marcellus, in which, while exhorting him not to be too severe in punishing the Donatists, he praises him at the same time for having drawn out the confession of crimes so great by whipping with rods, inasmuch as this "mode of coercion is wont to be applied by the masters of liberal arts, by parents themselves, and often even by bishops in their judgments." Corporal punishment seems, moreover, to have formed, from an early period, if not from the first, a part of the monastic discipline. The rule of Pachomius, translated into Latin by Jerome, imposes the penalty of thirty- nine lashes, to be inflicted before the gates of the monastery (besides fasting), after three warnings, on a monk who persists in the "most evil custom" of talking, as well as for theft. Cassian (end of 4th or beginning of 5th century) places flogging on the same line with expulsion as a punishment for the graver offences against monastic discipline (some of which, indeed, may appear to us very slight), as "open reproaches, manifest acts of contempt, swelling words of contradiction, a free and unrestrained gait, familiarity with women anger, fightings, rivalries, quarrels, the presumption to do some special work, the contagion of money-loving, the affecting and possessing of things superfluous, which other brethren have not, extraordinary and furtive reflections, and the like." In the rule of Benedict (A.D. 528) corporal punishment seems implied: "If a brother for any, the slightest, cause is corrected in any way by the abbot or any prior, or if he lightly feel that the mind of any prior is wroth or moved against him, however moderately, without delay let him lie prostrate on the earth at his feet, doing satisfaction until that emotion be healed. But if any scorn to do this, let him be either subjected to corporal punishment, or, if contumacious, expelled from the monastery." Here, it will be seen, corporal punishment is viewed as a lighter penalty than expulsion.
In the letters of Gregory the Great, 590-603, the right of inflicting, or at least ordering, personal chastisement is evidently assumed to belong to the clergy. In a letter to Pantaleo the Notary, on the subject of a deacon's daughter who had been seduced by a bishop's nephew, he required either that the offender should marry her, executing the due nuptial instruments, or be "corporally chastised" and put in penance in a monastery, and the pope renews this injunction in a letter to the uncle, bishop Felix, himself. Bishop Andreas of Tarentum, who had had a woman on the roll of the Church cruelly whipped with rods, against the order of the priesthood, so that she died after eight months, was nevertheless only punished by this really great pope with two months' suspension from saying mass. Sometimes, indeed, corporal punishment was inflicted actually in the church, as we see in another letter of the same pope to the bishop of Constantinople, complaining that an Isaurian monk and priest had been thus beaten with rods, "a new and unheard-of mode of preaching." But the same Gregory deemed it fitting that slaves guilty of idolatry, or following sorcerers, should be chastised with stripes and tortures for their amendment. Elsewhere the flogging of penitent thieves seems to be implied.
Towards the end of the same century, the sixteenth Council of Toledo (A.D. 693), enacted that one hundred lashes and shameful decalvatio should be the punishment of unnatural offences. With this and a few other exceptions, however, the enactments of the Church as to corporal punishment chiefly refers to clerics or monks. The Council of Vannes, in 465, had indeed already enacted that a cleric proved to have been drunk should either be kept thirty days out of communion, or subjected to corporal punishment. The first Council of Orleans, in 511, had enacted that if the relict of a priest or deacon were to marry again, she and her husband were, after "castigation," to be separated, or excommunicated if they persisted in living together. Towards the end of the 7th century, the Council of Autun (about 670) enacted that any monk who went against its decrees should either be beaten with rods, or suspended for three years from communion. In the next century, Gregory III (731-741), in his excerpt from the Fathers and the Canons, assigns stripes as the punishment for thefts of holy things. The Synod of Metz, 753, in a canon already quoted in part above as a capitulary, enacted that a slave or freedman without money, committing incest with a consecrated woman, a gossip, a cousin, was to be beaten with many stripes, and that clerics committing the like offence, if minor ones, were to be beaten or imprisoned.