OF SUNDRY KINDS OF PUNISHMENT APPOINTED FOR OFFENDERS.
[1577, Book III., Chapter 6; 1587, Book II., Chapter 11.]
In cases of felony, manslaughter, robbery, murder, rape, piracy, and such
capital crimes as are not reputed for treason or hurt of the estate, our
sentence pronounced upon the offender is, to hang till he be dead. For of
other punishments used in other countries we have no knowledge or use; and
yet so few grievous crimes committed with us as elsewhere in the world. To
use torment also or question by pain and torture in these common cases
with us is greatly abhorred, since we are found always to be such as
despise death, and yet abhor to be tormented, choosing rather frankly to
open our minds than to yield our bodies unto such servile haulings and
tearings as are used in other countries. And this is one cause wherefore
our condemned persons do go so cheerfully to their deaths; for our nation
is free, stout, haughty, prodigal of life and blood, as Sir Thomas Smith
saith, lib. 2, cap. 25, _De Republica_,[220] and therefore cannot in any
wise digest to be used as villains and slaves, in suffering continually
beating, servitude, and servile torments.[221] No, our gaolers are guilty
of felony, by an old law of the land, if they torment any prisoner
committed to their custody for the revealing of his accomplices.
The greatest and most grievous punishment used in England for such as
offend against the State is drawing from the prison to the place of
execution upon an hurdle or sled, where they are hanged till they be half
dead, and then taken down, and quartered alive; after that, their members
and bowels are cut from their bodies, and thrown into a fire,[222]
provided near hand and within their own sight, even for the same purpose.
Sometimes, if the trespass be not the more heinous, they are suffered to
hang till they be quite dead. And whensoever any of the nobility are
convicted of high treason by their peers, that is to say, equals (for an
inquest of yeomen passeth not upon them, but only of the lords of
parliament), this manner of their death is converted into the loss of
their heads only, notwithstanding that the sentence do run after the
former order. In trial of cases concerning treason, felony, or any other
grievous crime not confessed, the party accused doth yield, if he be a
noble man, to be tried by an inquest (as I have said) and his peers; if a
gentleman, by gentlemen; and an inferior, by God and by the country, to
wit, the yeomanry (for combat or battle is not greatly in use), and, being
condemned of felony, manslaughter, etc., he is eftsoons hanged by the neck
till he be dead, and then cut down and buried. But if he be convicted of
wilful murder, done either upon pretended malice or in any notable
robbery, he is either hanged alive in chains near the place where the fact
was committed (or else upon compassion taken, first strangled with a
rope), and so continueth till his bones consume to nothing. We have use
neither of the wheel nor of the bar, as in other countries; but, when
wilful manslaughter is perpetrated, beside hanging, the offender hath his
right hand commonly stricken off before or near unto the place where the
act was done, after which he is led forth to the place of execution, and
there put to death according to the law.
The word felon is derived of the Saxon words _fell_ and _one_, that is to
say, an evil and wicked one, a one of untameable nature and lewdness not
to be suffered for fear of evil example and the corruption of others. In
like sort in the word _felony_ are many grievous crimes contained, as
breach of prison (Ann. 1 of Edward the Second), disfigurers of the
prince's liege people (Ann. 5 of Henry the Fourth), hunting by night with
painted faces and visors (Ann. 1 of Henry the Seventh), rape, or stealing
of women and maidens (Ann. 3 of Henry Eight), conspiracies against the
person of the prince (Ann. 3 of Henry the Seventh), embezzling of goods
committed by the master to the servant above the value of forty shillings
(Ann. 17 of Henry the Eighth), carrying of horses or mares into Scotland
(Ann. 23 of Henry Eight), sodomy and buggery[223] (Ann. 25 of Henry the
Eighth), conjuring,[224] forgery, witchcraft, and digging up of crosses
(Ann. 33 of Henry Eight),[225] prophesying upon arms, cognisances, names,
and badges (Ann. 33 of Henry Eight), casting of slanderous bills (Ann. 37,
Henry Eight), wilful killing by poison (Ann. 1 of Edward the Sixth),
departure of a soldier from the field (Ann. 2 of Edward the Sixth),
diminution of coin, all offences within case of premunire, embezzling of
records, goods taken from dead men by their servants, stealing of
whatsoever cattle, robbing by the high way, upon the sea, or of dwelling
houses, letting out of ponds, cutting of purses,[226] stealing of deer by
night,[227] counterfeits of coin,[228] evidences charters, and writings,
and divers other needless to be remembered. If a woman poison her husband,
she is burned alive;[229] if the servant kill his master, he is to be
executed for petty treason; he that poisoneth a man is to be boiled to
death in water or lead, although the party die not of the practice; in
cases of murder, all the accessories are to suffer pains of death
accordingly. Perjury is punished by the pillory, burning in the forehead
with the letter P, the rewalting of the trees growing upon the grounds of
the offenders, and loss of all his movables. Many trespasses also are
punished by the cutting off of one or both ears from the head of the
offender, as the utterance of seditious words against the magistrates,
fraymakers, petty robbers, etc. Rogues are burned through the ears;
carriers of sheep out of the land, by the loss of their hands; such as
kill by poison are either boiled or scalded to death in lead or seething
water. Heretics are burned quick;[230] harlots and their mates, by
carting, ducking, and doing of open penance in sheets in churches and
market steeds, are often put to rebuke. Howbeit, as this is counted with
some either as no punishment at all to speak of, or but little regarded of
the offenders, so I would with adultery and fornication to have some
sharper law. For what great smart is it to be turned out of hot sheet into
a cold, or after a little washing in the water to be let loose again unto
their former trades? Howbeit the dragging of some of them over the Thames
between Lambeth and Westminster at the tail of a boat is a punishment that
most terrifieth them which are condemned thereto; but this is inflicted
upon them by none other than the knight marshall, and that within the
compass of his jurisdiction and limits only. Canutus was the first that
gave authority to the clergy to punish whoredom, who at that time found
fault with the former laws as being too severe in this behalf. For, before
the time of the said Canutus, the adulterer forfeited all his goods to the
king and his body to be at his pleasure; and the adulteress was to lose
her eyes or nose, or both if the case were more than common: whereby it
appears of what estimation marriage was amongst them, since the breakers
of that holy estate were so grievously rewarded. But afterward the clergy
dealt more favourably with them, shooting rather at the punishments of
such priests and clerks as were married than the reformation of adultery
and fornication, wherein you shall find no example that any severity was
shewed except upon such lay men as had defiled their nuns. As in theft
therefore, so in adultery and whoredom, I would wish the parties
trespassing to be made bond or slaves unto those that received the injury,
to sell and give where they listed, or to be condemned to the galleys: for
that punishment would prove more bitter to them than half-an-hour's
hanging, or than standing in a sheet, though the weather be never so cold.
Manslaughter in time past was punished by the purse, wherein the quantity
or quality of the punishment was rated after the state and calling of the
party killed: so that one was valued sometime at 1200, another at 600, or
200 shillings. And by a statute made under Henry the First, a citizen of
London at 100, whereof elsewhere I have spoken more at large. Such as kill
themselves are buried in the field with a stake driven through their
bodies.
Witches are hanged, or sometimes burned; but thieves are hanged (as I said
before) generally on the gibbet or gallows, saving in Halifax, where they
are beheaded after a strange manner, and whereof I find this report. There
is and has been of ancient time a law, or rather a custom, at Halifax,
that whosoever does commit any felony, and is taken with the same, or
confesses the fact upon examination, if it be valued by four constables to
amount to the sum of thirteenpence-halfpenny, he is forthwith beheaded
upon one of the next market days (which fall usually upon the Tuesdays,
Thursdays, and Saturdays), or else upon the same day that he is so
convicted, if market be then holden. The engine wherewith the execution is
done is a square block of wood of the length of four feet and a half,
which does ride up and down in a slot, rabbet, or regall, between two
pieces of timber, that are framed and set upright, of five yards in
height. In the nether end of the sliding block is an axe, keyed or
fastened with an iron into the wood, which being drawn up to the top of
the frame is there fastened by a wooden pin (with a notch made into the
same, after the manner of a Samson's post), unto the midst of which pin
also there is a long rope fastened that cometh down among the people, so
that, when the offender hath made his confession and hath laid his neck
over the nethermost block, every man there present doth either take hold
of the rope (or putteth forth his arm so near to the same as he can get,
in token that he is willing to see true justice executed), and, pulling
out the pin in this manner, the head-block wherein the axe is fastened
doth fall down with such a violence that, if the neck of the transgressor
were as big as that of a bull, it should be cut in sunder at a stroke and
roll from the body by a huge distance. If it be so that the offender be
apprehended for an ox, oxen, sheep, kine, horse, or any such cattle, the
self beast or other of the same kind shall have the end of the rope tied
somewhere unto them, so that they, being driven, do draw out the pin,
whereby the offender is executed. Thus much of Halifax law, which I set
down only to shew the custom of that country in this behalf.
Rogues and vagabonds are often stocked and whipped; scolds are ducked upon
cucking-stools in the water. Such felons as stand mute, and speak not at
their arraignment, are pressed to death by huge weights laid upon a board,
that lieth over their breast, and a sharp stone under their backs; and
these commonly held their peace, thereby to save their goods unto their
wives and children, which, if they were condemned, should be confiscated
to the prince. Thieves that are saved by their books and clergy, for the
first offence, if they have stolen nothing else but oxen, sheep, money, or
such like, which be no open robberies, as by the highway side, or
assailing of any man's house in the night, without putting him in fear of
his life, or breaking up his walls or doors, are burned in the left hand,
upon the brawn of the thumb, with a hot iron, so that, if they be
apprehended again, that mark betrayeth them to have been arraigned of
felony before, whereby they are sure at that time to have no mercy. I do
not read that this custom of saving by the book is used anywhere else than
in England; neither do I find (after much diligent enquiry) what Saxon
prince ordained that law. Howbeit this I generally gather thereof, that it
was devised to train the inhabitants of this land to the love of learning,
which before contemned letters and all good knowledge, as men only giving
themselves to husbandry and the wars: the like whereof I read to have been
amongst the Goths and Vandals, who for a time would not suffer even their
princes to be learned, for weakening of their courage, nor any learned men
to remain in the council house, but by open proclamation would command
them to avoid whensoever anything touching the state of the land was to be
consulted upon. Pirates and robbers by sea are condemned in the Court of
the Admiralty, and hanged on the shore at low-water mark, where they are
left till three tides have overwashed them.[231] Finally, such as having
walls and banks near unto the sea, and do suffer the same to decay (after
convenient admonition), whereby the water entereth and drowneth up the
country, are by a certain ancient custom apprehended, condemned, and
staked in the breach, where they remain for ever as parcel of the
foundation of the new wall that is to be made upon them, as I have heard
reported.
And thus much in part of the administration of justice used in our
country, wherein, notwithstanding that we do not often hear of horrible,
merciless, and wilful murders (such I mean as are not seldom seen in the
countries of the main), yet now and then some manslaughter and bloody
robberies are perpetrated and committed, contrary to the laws, which be
severely punished, and in such wise as I have before reported. Certes
there is no greater mischief done in England than by robberies, the first
by young shifting gentlemen, which oftentimes do bear more port than they
are able to maintain. Secondly by serving-men,[232] whose wages cannot
suffice so much as to find them breeches; wherefore they are now and then
constrained either to keep highways, and break into the wealthy men's
houses with the first sort, or else to walk up and down in gentlemen's and
rich farmer's pastures, there to see and view which horses feed best,
whereby they many times get something, although with hard adventure: it
hath been known by their confession at the gallows that some one such
chapman hath had forty, fifty, or sixty stolen horses at pasture here and
there abroad in the country at a time, which they have sold at fairs and
markets far off, they themselves in the mean season being taken about home
for honest yeomen, and very wealthy drovers, till their dealings have been
betrayed. It is not long since one of this company was apprehended, who
was before time reputed for a very honest and wealthy townsman; he uttered
also more horses than any of his trade, because he sold a reasonable
pennyworth and was a fair-spoken man. It was his custom likewise to say,
if any man hucked hard with him about the price of a gelding, "So God help
me, gentlemen (or sir), either he did cost me so much, or else, by Jesus,
I stole him!" Which talk was plain enough; and yet such was his estimation
that each believed the first part of his tale, and made no account of the
latter, which was truer indeed.
Our third annoyers of the commonwealth are rogues, which do very great
mischief in all places where they become. For, whereas the rich only
suffer injury by the first two, these spare neither rich nor poor; but,
whether it be great gain or small, all is fish that cometh to net with
them. And yet, I say, both they and the rest are trussed up apace. For
there is not one year commonly wherein three hundred or four hundred of
them are not devoured and eaten up by the gallows in one place and other.
It appeareth by Cardan (who writeth it upon the report of the bishop of
Lexovia), in the geniture of King Edward the Sixth, how Henry the Eighth,
executing his laws very severely against such idle persons, I mean great
thieves, petty thieves, and rogues, did hang up threescore and twelve
thousand of them in his time. He seemed for a while greatly to have
terrified the rest; but since his death the number of them is so
increased, yea, although we have had no wars, which are a great occasion
of their breed (for it is the custom of the more idle sort, having once
served, or but seen the other side of the sea under colour of service, to
shake hand with labour for ever, thinking it a disgrace for himself to
return unto his former trade), that, except some better order be taken,
or the laws already made be better executed, such as dwell in uplandish
towns and little villages shall live but in small safety and rest. For the
better apprehension also of thieves and man-killers, there is an old law
in England very well provided whereby it is ordered that, if he that is
robbed (or any man) complain and give warning of slaughter or murder
committed, the constable of the village whereunto he cometh and crieth for
succour is to raise the parish about him, and to search woods, groves, and
all suspected houses and places, where the trespasser may be, or is
supposed to lurk; and not finding him there, he is to give warning unto
the next constable, and so one constable, after search made, to advertise
another from parish to parish, till they come to the same where the
offender is harboured and found. It is also provided that, if any parish
in this business do not her duty, but suffereth the thief (for the
avoiding of trouble sake) in carrying him to the gaol, if he should be
apprehended, or other letting of their work to escape, the same parish is
not only to make fine to the king, but also the same, with the whole
hundred wherein it standeth, to repay the party robbed his damages, and
leave his estate harmless. Certainly this is a good law; howbeit I have
known by my own experience felons being taken to have escaped out of the
stocks, being rescued by other for want of watch and guard, that thieves
have been let pass, because the covetous and greedy parishioners would
neither take the pains nor be at the charge, to carry them to prison, if
it were far off; that when hue and cry have been made even to the faces of
some constables, they have said: "God restore your loss! I have other
business at this time." And by such means the meaning of many a good law
is left unexecuted, malefactors emboldened; and many a poor man turned out
of that which he hath sweat and taken great pains toward the maintenance
of himself and his poor children and family.