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TYBURN TREE
ITS HISTORY AND ANNALS
[Illustration: GIBBET ON KENNINGTON COMMON, ABOUT 1748.]
TYBURN TREE
ITS
HISTORY AND ANNALS
BY
ALFRED MARKS
AUTHOR OF “WHO KILLED SIR EDMUND BERRY GODFREY?”
“HUBERT AND JOHN VAN EYCK: THE QUESTION OF
THEIR COLLABORATION CONSIDERED,”
ETC., ETC.
Who … began diligently and earnestly to prayse that strayte
and rygorous iustice, which at that tyme was there executed
vpon fellones, who as he sayde, were for the most part xx
hanged together vpon one gallowes.—Sir THOMAS MORE, _Utopia_,
about 1516.
LONDON
BROWN, LANGHAM & CO.
78, NEW BOND STREET, W.
Ther bith therfore mo men hanged in Englande in a yere ffor
robbery and manslaughter, then ther be hanged in Ffraunce ffor
such maner of crime in vij yeres.—CHIEF JUSTICE FORTESCUE,
about 1476.
* * * * *
Than stele they, or Rubbe they. Forsoth they can nat chuse,
For without Londe or Labour hard is it to mentayne,
But to thynke on the Galows that is a careful payne.
But be it payne or nat: there many suche ende.
At Newgate theyr garmentis are offred to be solde.
Theyr bodyes to the Jebet solemly ascende,
Wauynge with the wether whyle theyr necke wyl holde.
ALEXANDER BARCLAY, _The Ship of Fools_, 1509.
* * * * *
Je suis persuadé que dans les treize cantons et leurs alliés,
on pend moins de voleurs dans un an, que l’on ne fait à Londres
dans une seule assise.—CÉSAR DE SAUSSURE, _Lettres et Voyages_,
1725-1729.
* * * * *
Many cart-loads of our fellow-creatures are once in six weeks
carried to slaughter.—HENRY FIELDING, _Enquiry_, etc., 1751.
* * * * *
The following malefactors were executed at Tyburn … John Kelly,
for robbing Edward Adamson in a public street, of sixpence and
one farthing.—_Gentleman’s Magazine_, March 7, 1783.
* * * * *
It is frequently said by them [the prisoners in Newgate] that
the crimes of which they have been guilty are as nothing when
compared with the crimes of Government towards themselves: that
they have only been thieves, but that their governors have been
murderers.—Mrs. FRY, 1818, quoted in _Romilly’s Life_, ii.
486-7.
PREFACE
How our fathers lived is a subject of never-failing interest: of some
interest it may be to inquire how they died—at Tyburn. The story has
many aspects, some noble, some squalid, some pathetic, some revolting.
If I am reproached with dwelling on the horrors of Tyburn, I take refuge
under the wing of the great Lipsius, who, in his treatise De Cruce, has
lavished the stores of his appalling erudition on a subject no less
terrible.
But the subject has an interest other than antiquarian. We are to-day far
from the point of view of Shelley—
“Power like a desolating pestilence
Pollutes whate’er it touches.”
The general tendency is all towards extending the power of governments.
Some would fain extend the sphere of the State’s activity so as to give
to the State control over almost every action of our daily lives. It may
therefore be not without use to recall how governments have dealt with
the people in the past. The State never voluntarily surrenders anything
of its power. Less than a hundred years ago, ministers stoutly defended
their privilege of tearing out a man’s bowels and burning them before
his eyes. The State devised and executed hideous punishments, sometimes
made still more hideous by the ferocity of its instruments, the judges.
All mitigation of these punishments has been forced on the State by
“idealists.” The State dragged its victims, almost naked, three miles
over a rough road. The hands of compassionate friars placed the sufferer
on a hurdle—not without threats of punishment for so doing. In the end,
the State adopted the hurdle. So it has always been. Not a hundred years
ago, Viscount Sidmouth, the Home Secretary, could see no reason for
altering the law which awarded the penalty of death to one who had stolen
from a shop goods to the value of five shillings. To Romilly, though he
did not live to see this result of his untiring labours in the cause of
humanity, we may gratefully ascribe the abolition of the extreme penalty
for this offence.
On this field, as on others, the victories of civilisation have been won
by the individual in conflict with the community.
* * * * *
I desire to thank Mr. C. W. Moule, the Librarian of Corpus Christi
College, and the College authorities, for permission, most courteously
granted, to reproduce the drawing by Matthew Paris showing Sir William de
Marisco being drawn to the gallows.
I am indebted to Mr. Herbert Sieveking for permission to reproduce, from
a photograph taken for him, the print from the Gardner Collection showing
an execution at Tyburn. I am in an especial degree obliged to him for
calling my attention to Norden’s map of Middlesex, the subject of an
article by him in the _Daily Graphic_ of September 4, 1908.
CONTENTS
PAGE
WHOM TO EXECUTE? WHO IS TO EXECUTE? HOW TO EXECUTE? 6
DRAWN, HANGED, AND QUARTERED 27
TORTURE AND THE PEINE FORTE ET DURE 35
THE HANGMAN 44
AFTER TYBURN 49
ORIGIN AND SITE OF THE TYBURN GALLOWS 54
THE CHRONOLOGY OF TYBURN 71
ANNALS 73
INDEX 269
ILLUSTRATIONS
THE REV. MR. WHITEFIELD PREACHING ON KENNINGTON COMMON _Frontispiece_
From a print in the Crowle Pennant, Print Room, British
Museum, Part VIII., No. 242. Probable date, 1748, or
somewhat later. The triangular gallows is probably that
erected for the execution in 1746 of the rebels of
1745. The bodies on the gibbet are those of highwaymen
or murderers.
FACING PAGE
THE FIRST KNOWN REPRESENTATION OF THE TRIPLE TREE 62
A portion of a map of Middlesex engraved by John Norden
for William Camden’s “Britannia,” edition of 1607.
THE TRIPLE TREE ABOUT 1614 64
The illustration reproduces the frontispiece of a book.
The gallows is shown in the uppermost lozenge on the
left.
THE RUINS OF FARLEIGH CASTLE 66
From Sir Richard Colt Hoare’s “Hungerfordiana; or,
Memoirs of the Family of Hungerford,” 1823.
THE TRIPLE TREE IN 1712 66
From a broadsheet published by the Rev. Paul Lorrain,
the Ordinary of Newgate, containing an account of an
execution at Tyburn, on September 19, 1712.
THE TRIPLE TREE IN 1746 68
Reduced from Rocque’s 24-sheet Map of London, etc.,
begun in March, 1737, and published in October, 1746.
THE SITE OF TYBURN TREE 70
Showing the locality before the alterations of 1908.
Reduced from the Ordnance large-scale map of 1895.
SIR WILLIAM DE MARISCO (OR WILLIAM MARSH) DRAWN TO TYBURN IN 1242 90
From a contemporary drawing by Matthew Paris in the MS.
“Chronica Majora,” in the possession of Corpus Christi
College, Cambridge. Reproduced here by permission of
the Librarian and authorities of the College.
DRAWING TO TYBURN ON HURDLES, _temp._ ELIZABETH 166
From “The Life and Death of Mr. Genings.” (_See
illustration facing p. 64._)
EXECUTIONS AT TYBURN, _temp._ ELIZABETH 168
From “The Life and Death of Mr. Genings.” (_See
illustration facing p. 64._)
THE TRIPLE TREE ABOUT 1680 198
From a print in the Gardner Collection. Reproduced,
with Mr. Gardner’s permission, by Mr. Herbert
Sieveking, who allows this reproduction from a
photograph taken for him.
THE PEINE FORTE ET DURE 230
William Spiggott under the press in Newgate, in 1721.
From the (anonymous) “Newgate Calendar,” 5 vols., 1773.
THE TRIPLE TREE IN 1747 240
Reduced from the last plate of Hogarth’s series of
“Industry and Idleness,” showing the execution at
Tyburn of Thomas Idle.
THE INTERIOR OF SURGEONS’ HALL 246
Showing the body of a murderer after dissection, in
accordance with the provisions of the Act of 1752. From
“The New and Complete Newgate Calendar,” by William
Jackson, of the Inner Temple, Barrister-at-Law, 6
vols., 1795.
DRAWING TO TYBURN ON A SLEDGE 248
Showing Dr. Cameron being drawn to Tyburn in 1753. From
“The Old Bailey Chronicle,” by James Montague, of the
Temple, 4 vols., 1783.
THE EXECUTION AT TYBURN OF EARL FERRERS IN 1760 252
From a print in the Crace Collection, Print Room,
British Museum, Views, Portfolio XXX., No. 3. This
was one of the earliest executions on the new movable
gallows.
THE NEW GALLOWS AT NEWGATE, 1783 266
From “The Old Bailey Chronicle,” as above.
ADDENDA.
_Pages 62-65, and illustration._
Norden’s map of 1607 gives the first indication of the site of the
triangular gallows, but, in writing of the map as giving the earliest
known representation of the gallows, I had forgotten Richard Verstegen’s
“Theatrum Crudelitatum Haereticorum nostri temporis,” Antwerp, 1587. The
Triple Tree is shown quite correctly as to form, without indication of
site, on p. 83.
_Page 170, “put them to the manacles.”_
This instrument of torture is shown in the above-mentioned book, in
an engraving on page 75, the description, here translated, being: “An
instrument of iron which presses and doubles up a man into a globe-shape.
In this they put Catholics, and keep them in it for some hours.”
TYBURN TREE
Its History and Annals
HISTORY
INTRODUCTION
Looking back down the long vista of six hundred years, we see an
innumerable crowd faring to their death from the Tower of London or
from the prison of Newgate to the chief of English Aceldamas, the field
of blood known as Tyburn. Of this crowd there exists no census, we can
but make a rough estimate of the number of those who suffered a violent
death at Tyburn: a moderate computation would place the number at fifty
thousand. It is composed of all sorts and conditions of men, of peers
and populace, of priests and coiners, of murderers and of boys who have
stolen a few pence, of clergymen and forgers—sometimes of men who in
their person unite the two characters—of men versed in the literature of
Greece and Rome, of men knowing no language but the jargon of thieves.
Cheek by jowl are men convicted of the most hideous crimes—men whose only
offence it is that they have refused to renounce their most cherished
beliefs at the bidding of tyrant king or tyrant mob. As a final touch of
grim humour the ex-hangman sometimes figures in the procession, on the
way to be hanged by his successor.
They fare along their Via Dolorosa in many ways. Some bound and laid on
their back are dragged by horses over the rough and miry way, three
miles long; a few are on horseback; some walk between guards; the most
are borne in carts which carry also due provision of coffins presently
to receive their bodies. All make a halt at the Hospital of Saint
Giles-in-the-Fields, where they are “presented with a great bowl of ale,
thereof to drink at their pleasure, as to be their last refreshment in
this life.”
It is for the most part a nameless, unrecorded crowd. For hundreds of
years only a single figure emerges here and there from the throng.
During a few decades only of the history of Tyburn do we see clearly
and in detail the figures in these dismal processions. They go, in
batches of ten, fifteen, twenty, laughing boys, women with children at
the breast, highwaymen decked out in gay clothes for this last scene of
glory; men and women drunk, cursing, praying. Some of the women are to
be burnt alive; of the men, some are to be simply hanged; others, first
half-hanged, are to have their bowels torn out and burnt before their
eyes; some are to be swung aloft till famine cling them. The long road
is thronged with spectators flocking in answer to the invitation of the
State to attend these spectacles, designed to cleanse the heart by means
of pity and terror. To-day Tyburn—what Tyburn means—is, in spite of the
jurists, at its last gasp. After a struggle of a hundred years hanging
is all but abolished. The State has renounced its attempt to improve our
morals by the public spectacle of violent deaths. The knell of capital
punishment was rung when Charles Dickens compelled the State to do its
hanging in holes and corners.
The “Histories of England” do not tell us much about Tyburn. “The far
greater part of those books which are called ‘Histories of England,’”
writes Cobbett, “are little better than romances. They treat of battles,
negotiations, intrigues of courts, amours of kings, queens, and nobles;
they contain the gossip and scandal of former times, and very little
else.” Nor do we find much more in those most dismal of books called
“Constitutional Histories.” They mention Tyburn only in connection
with the execution of some one who infringed the rules as at the time
understood, of The Game played at Westminster, before the establishment
of the present perfect accord between the Ins and the Outs, between those
whom Cobbett irreverently calls the rooks at the top of the tree and the
daws on the lower branches.
The story of Tyburn is one of the strangest, surely one also of the
saddest, in the history of the people. To understand it, we must consider
the social and legal conditions which found their outcome at Tyburn.
WHOM TO EXECUTE? WHO IS TO EXECUTE? HOW TO EXECUTE?
These questions have, after much experimenting, been so completely
answered that it is to-day difficult to realise that each question has
presented serious problems. We hang only those found guilty of murder, to
the regret of jurists like Sir James Fitzjames Stephen, who thought that
the punishment of death ought to be inflicted in _many_ other cases.[1]
But in times not very remote there were on the Statute Book, as has been
reckoned, no fewer than two hundred capital offences. No man is now
hanged except after trial and conviction by a Court of Assize, or by the
Central Criminal Court. A person so convicted is executed by the common
hangman in the simple manner invented long ago by some one who discovered
that a rope tied about a man’s neck is held in position by the projecting
mass of the head.
In old times the country swarmed with courts of inferior jurisdiction,
each, however, with the power of hanging thieves. There is a satirical
story telling how a man who had suffered shipwreck scrambled up a cliff,
and, seeing a gallows, fell on his knees, and thanked God that he found
himself in a Christian country. In the England of the thirteenth century
he would not have had to travel far into the interior to find this mark
of Christian civilisation. The right to erect a gallows was frequently
granted, and perhaps even more frequently assumed without legal right.
In the grants of franchises to monasteries we find, together with
the concession of assize of bread and beer, and judgment of fire and
water—together with these we find franchise of “swa full and swa forth,”
&c., of sac and soc, tol and theam, flem and fleth, blodwith, grithbrith,
flemensferd, infangethef and utfangethef. And among such franchises,
some of which are a puzzle to the learned, we find a franchise easily
understood, of “furca et fossa,” of gallows and pit, gallows for men,
pit, full of water, for women.[2] All these numerous franchises were
rights of the crown—jura regalia—often granted to monasteries and to
individuals. In a record of which more will have to be said, we read that
at the end of the thirteenth century there were no fewer than fifteen
gallows in the hundred of Newbury alone, mostly belonging to religious.
Among them we find one belonging to a prioress, a not uncommon case.
It is distressing to think that Chaucer’s tender-hearted prioress, who
“wolde weepe if that sche sawe a mous caught in a trappe, if it were deed
or bledde,” had a gallows on which—by the hands of her bailiff—she hanged
thieves. There is little doubt that she had her gallows.
But one’s first surprise at the enormous number of gallows subsides
when we consider the conditions of life in early times. The country was
thickly wooded: immense forests gave shelter to robbers, thieves, to all
under the ban of the law. One of the laws of Ina runs, “If a far-coming
man, or a stranger, journey through a wood, out of the highway, and
neither shout nor blow his horn, he is to be held for a thief, either
to be slain, or redeemed.” To come to later times—there is a tradition
that the stewardship of the Chiltern Hundreds was instituted for the
purpose of putting down thieves. Tradition it may be called, for the
conjecture is not supported by evidence. Thus, in a Parliamentary paper
issued in 1894, there are some notes on the history of the stewardship.
As to its origin, these notes do not go behind Wharton’s Law Dictionary,
and Chambers’s Encyclopædia. Here is the story of the origin of the
stewardship, or as it would be more properly called, the wardenship.
Leofstan, the abbat here named, was a friend of Edward the Confessor; it
is known from an old record that he was abbat in 1047. In reading the
narrative we must remember that the “Ciltria” of the story was a wider
district than that to which we now give the name of Chiltern.
“THE STORY OF THE CHILTERN HUNDREDS.
“This same abbat Leofstan, also called Plumstan, being a
simple and pious man, full of compassion for all persons
in peril, in order to make the roads safer for travellers,
merchants and pilgrims faring to the church of the Blessed
Alban, whether for the expiation of their sins, or for their
worldly profit, caused to be cut down, chiefly along the royal
road called Watling Street, the dense forests stretching from
the border of Ciltria almost as far as to the north side of
London: he also cleared the rough places, made bridges and
levelled the way. For there were at that time all over Ciltria
vast, dense forests, giving shelter to many different kinds
of wild beasts, namely, wolves, wild boars, wild bulls, and
stags, and, more dangerous still, to robbers, thieves by day
and thieves by night, men banished from the realm, fugitives
from justice. Wherefore abbat Leofstan—not to the loss, but to
the good of this church—made over to a certain most stout and
valiant knight, Turnot by name, and to two of his companions,
Waldef and Thurman, the manor of Flamstude [Flamstead lies a
little to the west of Watling Street], for which Turnot gave
privately to the abbat five ounces of gold, a most beautiful
palfrey, and a desirable greyhound. Which was done on these
conditions—that the said Turnot, with his fellow-knights before
named, and their followers, should protect the western parts,
most haunted by robbers, and effectually guard the same, with
the stipulation that they should make good any loss arising
from their negligence. And if a general war should break out in
the kingdom, they should use their utmost diligence, and do all
in their power to protect the church of St. Alban. And these
covenants Turnot and his companions faithfully observed, as did
also their heirs up to the time when King William conquered
England. Then, because they disdained to come under the yoke
of the Normans, the manor was taken from them. Refusing to
submit, they chose rather to betake themselves to the forest,
and laid ambushes for the Normans who had taken possession
of their lands, burnt their houses, and killed many of them.
But, the king’s affairs going well, some made their peace with
him, some were captured and punished.… However, a certain
noble, Roger de Thoni by name, who, in the distribution of
lands, came into possession of the manor, did not refuse to
acknowledge the right of St. Alban’s, and zealously performed
the before-mentioned duty. He was highly renowned in arms, a
Norman by race, of the stock of those famous soldiers who are
called after the Swan.”[3]
As the chronicler, who is supposed to have written before 1259, says
nothing of any lapse of the agreement, it seems probable that it
was still in force in his day, and that the wardenship has existed
continuously from the eleventh century to our own days.
About a century later matters had got from bad to worse:—
About 1160. A kind of robbers not before heard of began to
infest the country. Disguised as monks, these men joined
travellers, and when they reached the spot where their fellows
were lying in ambush, they gave a signal, and, turning on the
deluded wayfarers, robbed and murdered them.[4]
Still a century later, in 1249, bitter complaints were made by
certain merchants of Brabant of the unsafe state of the roads in the
neighbourhood of Winchester. These merchants had been robbed of two
hundred marks by men whose faces they had seen about the court. They
threatened reprisals on the goods of English merchants in Brabant. The
king, greatly moved, took strong measures. Twelve persons were selected
and sworn to give up the names of robbers known to them, but after
deliberation they refused to inculpate any one. They were thrown into
prison, and twelve others were chosen. These, finding that the first
twelve were condemned to be hanged, gave up the names of many men, of
whom some thirty were hanged, an equal number being thrown into prison.
It is clear that there existed a widespread organisation in which were
involved some belonging to the king’s household. These put the blame on
the king himself: they had not received their pay, and were compelled to
rob in order to maintain themselves.
The severe measures taken on this occasion did not cure the disease. Four
years later, the king, acting on the advice of certain Savoyards, decreed
that if any one was robbed or injured on a journey, compensation should
be made, according to the custom of Savoy, by those responsible for the
safety of the district. But the new plan came to nothing.[5]
On a calm review of the facts it is difficult to resist the conclusion
that civilisation has been immeasurably more favourable to the predatory
classes than to any other class whatsoever. The coarse, rude methods of
early times have given place to vastly improved ways of “conveying” a
neighbour’s goods. In the Paston Letters we read of nobles and great men
laying siege with an armed force to a coveted house. The appropriation
of “unearned increment” is at once more scientific and more productive.
The arts of engraving and printing have been turned to the greatest
advantage. A design, more or less elaborate, is produced, purporting to
represent a certain value expressed by numerals, as L. 1, L. 50, or L.
100. Persons of high social position are found to assure the public that
the pieces of paper on which these designs are printed are worth much
more than the expressed amount (known as the “face value”). Accomplices
pretend to buy these pieces of paper at an enhanced price, the public
follows suit, and in this way “shares,” as they are called, which will
never bring sixpence of revenue to the holder, have been known to be
eagerly bought at many times the “face value.” Many are the paths opened
by civilisation to rapid accumulation. In addition to the company-monger,
we have the “bucket-shop” keeper, the betting man, the army contractor,
the loan-monger, the owner of yellow and blackmailing journals. Each of
these, if only his operations are on a sufficiently large scale, may and
does rise to high social position. Each generation sees a vast extension
and improvement of method. A man who was in his day the greatest of
the tribe of company-mongers is said to have shed tears of bitter
self-reproach for lost opportunities as he surveyed the operations of his
successors.
It must, in fairness, be admitted that the public finds its account in
the new arts of relieving it of its money. Of old time Dunning, operating
in the forests of Ciltria, too often took the life as well as the
money of his victims. There is to-day no need of violence, and as all
that a man has will he give for his life, the improvement of method is
beneficial to the community generally. Thus all is for the best in the
best of all possible worlds.
Little could the pioneers foresee of the triumphs of their successors.
“William the Sacrist,” if William it was who planned the robbery of the
King’s treasury in 1303, perhaps the greatest burglary ever attempted,
must have been a man of the highest genius. Had he lived in the
nineteenth century he would have adopted more finished methods. He fell
upon evil times, and his skin illustrates a door in the cloisters of
Westminster Abbey (see p. 25).
Yes, William, you and your like lived in cruel times! You were called
harsh names, fures, latrones, vespiliones, raptores, grassatores,
robatores. To extirpate these old-time thieves, to bring them to the
gallows, was, if not the whole duty of man, at least the first duty of
the citizen. “Theft,” writes Sir James Fitzjames Stephen, “seems to
have been the crime of crimes. The laws are inexorable towards it. They
assume everywhere that thieves are to be pursued, taken and put to death
then and there.” Bracton[6] gives instructions for the swearing-in of
the whole male population over fifteen years of age for the purpose of
hunting down malefactors. The justiciaries on their circuits are to call
before them the greater men of the county, and to explain to them how it
has been provided by the king and his council that all, as well knights
as others of fifteen years of age and upwards, ought to swear that they
will not harbour outlaws and murderers, robbers or burglars, nor hold
converse either with them or their harbourers: that if they come to
know any such, they will declare it to the sheriff or his bailiffs. And
if they shall hear the Hutesium—the Hue and Cry—they shall immediately
follow with their household and the men of their land. Let them follow
the track to the boundary of their land, and show it to the lord of the
adjoining land, so that pursuit may be made with all diligence from land
to land till the malefactors are captured. There must be no delay in
following the track; it must be continued till nightfall. Such was the
famous Hutesium—the Hue and Cry—the name of which remains with us to the
present day. One of the old chroniclers tells how, in 1212, the Hue and
Cry was raised causelessly, in a panic, and spread over almost the whole
of England.[7]
The truth is that in the simple life of those days no robber nor thief
had the smallest chance of posing as a great man. The field, too, was
limited. Thieves and robbers could but operate on movable property or
clip the coin. It was the misfortune of the depredators living in “the
dark ages,” that a thief not only was a thief, but was of all men known
to be one.
One begins to understand the fury with which robbers and thieves
were pursued. Mr. Freeman says most justly, “In our settled times we
hardly understand how rigour, often barbarous rigour, against thieves
and murderers, should have been looked on as the first merit of a
governor, one which was always enough to cover a multitude of sins.”[8]
To the same cause we may, no doubt, ascribe the singular fact that
ecclesiastics, forbidden to shed blood, yet hanged men by the hands of
their bailiffs.[9] An abbat, for example, had two parts to fulfil. As an
ecclesiastic he gave shelter to thieves, as lord of the manor he hanged
them. The abbat of Westminster had his servants waiting in Thieving Lane
to show thieves the way to sanctuary: on the other hand, he had sixteen
gallows in Middlesex alone.[10] The contradiction is placed in the
strongest light by the charter of Glastonbury, granted by Edgar (A.D.
958-975). The charter concedes “infangethef and utfangethef,” the right
to try and assuredly to hang thieves. But the very same charter grants
that, if anywhere in the kingdom, the abbat or one of his monks should
meet a thief being taken to the gallows, or otherwise in danger of his
life, he could stay the execution of the sentence.[11]
The insight into the state of the country in the late thirteenth
century, given by the two publications of the Records Commission, Rotuli
Hundredorum, and Placita de Quo Waranto, is so valuable that it may be
permitted to glance at them. The preliminary to the first of these is
the Act of the fourth of Edward I. (1276), the statute for assigning
justices to the work. The statute, called “Rageman,” a term of doubtful
etymology, enacted that justices should go through the land inquiring
into, hearing, and determining all complaints and suits for trespasses
within twenty-five years last past, as well by the king’s bailiffs as by
all other persons whomsoever. These commissioners did their work with
a thoroughness amazing when we consider the difficulty of travel in
the times. The results are recorded in the Rotuli Hundredorum. On the
evidence furnished by the Rotuli Hundredorum was passed the statute of
Gloucester, in the sixth of Edward I. (1278). This Act put the burden
of proof of lawful claim to franchises on the persons exercising them.
The statute enacts that whereas prelates, earls, barons, and others of
the kingdom claim to have divers franchises, persons may continue to
exercise these franchises without prejudice to the king’s rights until
the next coming of the king into the county, or the next coming of the
justices in Eyre, or until the king otherwise order. The sheriffs are to
make proclamation that all who claim to have any franchise by charter or
otherwise shall come at a certain day to a place assigned, to state what
franchises they claim and by what title.
In 1281 was issued, according to the annals of Waverley, a mandate
“called by the people Quo Waranto, directed to certain justices, for
inquiring respecting lands, tenements, rents, alleged to be alienated
from the king, as well as regarding franchises held from him: by reason
of which mandate archbishops, bishops, abbats, priors, earls, barons, and
others holding franchises, as well religious as others, were subjected to
trouble and expense, although the king got little profit thereby.”[12]
The statements found in the presentments of jurors in the Rotuli
Hundredorum are, as might be surmised, somewhat in the nature of hearsay.
They have not the value, as material for investigating the social
condition of the time, of the more formal charges contained in the
Placita de Quo Waranto. Thus we find, in the Rotuli Hundredorum, that the
abbat of Westminster was presented by the jurors of three several wards
of the City of London as having gallows at Tyburn: in other cases gallows
are mentioned as erected by the abbat in Middlesex, two places only
being specified. But when we come to the Placita de Quo Waranto, we find
that the abbat had gallows in fifteen places in Middlesex in addition to
one in the ville of Westminster. These places were, Eye (a district of
Westminster), Teddington, Knightsbridge, Greenford, Chelsea, Brentford,
Paddington, Iveney, Laleham, Hampstead, Ecclesford, Staines, Halliford,
Westbourne, and Shepperton.[13]
This inquisition is not to be confounded with another, singularly called
“Trailbaston,” relating to criminal matters, as the other related to
civil affairs. “Trailbaston,” which may be rendered “Bludgeon-men,” has
sometimes been supposed to be so called from the justices themselves; but
it is more probable that, as we find the word in the earliest mention of
the subject, the bludgeon-men were those against whom operations were
directed, just as we might to-day speak of a “hooligan Act” if an Act
were specially devoted to these gentry.
The first official mention of Trailbaston is found in Rotuli
Parliamentorum, under date 1305, when it already bore the nickname
“Ordination de Trailbastons.” Justices were then assigned to inquire
as to murders and felonies committed during the last eight years. In
1306 the inquisition, as would seem, had not got to work, as the king
ordered that if the justices assigned are not sufficient for the duty, “a
parfaire les busoignes qe touchent les pledz de Traillebaston,” more are
to be assigned to the work. Five days later he sent a list of twenty-one
justices, and the thirty-eight counties allotted to them severally. The
inquisition of Trailbaston was found to work mainly as a great engine of
oppression. In 1377 the Commons petitioned that there may be no manner of
Trailbaston held in the realm during the war nor for twenty years. It is
alleged that both civil and criminal inquisitions had for object to bring
money into the exchequer by means of fines.[14]
To return to the subject of the multiplicity of courts. It is to be
supposed that, in the circumstances, there were frequently conflicts
between courts as to their respective jurisdiction. Of this conflict
we find curious instances in the chronicles. Thus, in 1249, a thief was
caught on the land of the abbat of Tewkesbury, but was suffered by the
abbat’s bailiffs to be taken to the court of the Earl of Gloucester.
After trial by this court the thief was hanged. On learning this, the
abbat was greatly incensed, seeing that the franchise of his church
had been invaded. Shortly after another case arose. John Milksop stole
thirty-one pence from Walter Wymund, of Bristol. As soon as Walter
discovered his loss, he raised the hue and cry, followed Milksop, traced
him to a wood, captured him, and brought him into the abbat’s court. The
earl’s bailiff protested: the abbat complained to the earl, who ordered
inquiry. As nothing came of this, a second order was issued, and twelve
persons were chosen to investigate the question. The abbat, finding the
inquiry going against him, protested against the manner of proceeding,
and went in person to the earl, then at some distance. The earl suggested
that the abbat should keep the accused in prison till the earl’s return
home. The abbat objected that he had neither castle nor prison in which
to keep the man for so long a time. Then the earl ordered a fresh inquiry
to be made against his return, the abbat meanwhile to try the man in
his own court, and to hang him on the earl’s gallows. Milksop was tried
accordingly, could make no good defence, and was hanged. The chronicle
does not tell the end of the dispute.[15]
In the twelfth century the district near Dunstable, where Watling Street
meets Icknield Street, was so infested by robbers that hardly could “a
lawful man” pass that way. The chronicler, whose etymology is not above
suspicion, states that Dunstable came by its name from one Dunning, a
famous robber who haunted the region. Henry I., towards the end of his
reign—say about 1130—founded Dunstable Priory, making over to it all his
rights, including a free gallows for hanging thieves outside the town of
Dunstable, in a place called Edescote.[16] The prior’s right was clear;
nevertheless, in 1274, Eudo la Suche threw down the prior’s gallows and
put up his own.[17]
Another instance. In 1290 Bogo de Knowill, the king’s bailiff of
Montgomery, complained to our lord the king that Edmund Mortimer had laid
hands upon a king’s man who had committed murder, had imprisoned him, in
spite of the bailiff’s demands, had refused to give him up, had tried
him in his own court, and hanged him, to the hurt of the franchise of
the town of Montgomery, and against the crown and its dignity, etc. The
king declared that Mortimer had forfeited his franchise of Wygemore, but
agreed to restore it on payment of a fine. But, in addition, Mortimer
must hand over to Bogo, the bailiff, an effigy, in the name and place of
the man who had been hanged, the bailiff to hang the effigy, and to let
it hang as long as may be. After a while, Mortimer complained that the
bailiff unjustly retained the franchise in the king’s hand. Whereunto
Bogo replied that the effigy had not been handed over to him, wherefore
he held the franchise aforesaid until, etc. And the king ordered that the
franchise should be held till the effigy should be handed over. This is
the last heard of Bogo, Mortimer, and the effigy.[18]
In such cases more was touched than the dignity of the lord of the
franchise. The concession of a franchise to hang generally included the
right to “catalla felonum,” the goods of felons and of fugitives. “These
courts,” says Sir James Fitzjames Stephen, “were a regular source of
income to the lord of the franchise.” Irregularities and tyrannies of
these petty courts, quarrelling over the right to imprison and hang, may
be assumed: we understand how it was that in popular risings the lawyers
were always singled out for vengeance.
How to execute? Even in regard to the way of mere hanging, the problem
presented difficulties. In France, a rigid etiquette guarded the method
of hanging. A franchise might give the right to hang upon trees only.[19]
Some gallows had two pillars, some three, four, six, eight, according to
the rank of the person erecting the gallows.[20] These nice distinctions
are not to be discovered in English customs. There are, however, traces
of strange practices. Four several bailiffs took part in the execution
of a man hanged on the gallows of the prior of Spalding. The bailiff of
Spalding brought the man to the gallows, the bailiff of Weston brought
the ladder to the gallows, the bailiff of Pyncebecke found the rope, the
rest was done by the bailiff of Multon.[21]
But hanging was one only out of numerous methods of carrying out a
capital sentence: ingenuity seems to have exhausted itself in devising
ways of putting a man to death. A law of Æthelstan decrees, “Let him be
smitten so that his neck break.”[22] When leaving England for Palestine,
Richard I. commanded that he who killed a man on board ship should be
tied to the corpse and thrown into the sea: if the murder was committed
on land, the murderer was to be buried alive with the body.[23] Boroughs
had their own several customs. In one place any man taking another who
had stolen to the value of 2s. 8½d., might forthwith hang him: for a
second offence the amount was reduced to 8¼d. In Romney, at the end of
the fifteenth century, the bailiff found the rope, the prosecutor was
bound to find a hangman. Failing this he must himself do the hanging,
or be put in prison with the felon till such time as he could find a
hangman, or resolve to hang the man with his own hands. In another place
a miller stealing flour to the value of 4d. was to be hanged from the
beam of his mill.[24] At Sandwich a murderer was buried alive on Thief
Down, where perhaps golf is now played.[25] In London, at the beginning
of the fourteenth century, a man convicted of treason in the court of
the mayor, was bound to a stake in the Thames during two flows and two
ebbs of the tide.[26] Two centuries later “pirats and robbers by sea are
condemned in the court of the admeraltie, and hanged on the shore at
lowe water marke, where they are left till three tides haue ouerwashed
them.”[27] At Fordwich, in the fifteenth century, a man condemned to
death was carried to a place called Thieves’ Well, there bound hand and
foot and thrown in by the prosecutor.[28] At Dover, the condemned man was
led to a cliff called Sharpnesse, and there executed by “infalistation,”
a word which puzzled the learned Selden. It means that the offender was
thrown over the cliff (falaise) on to the beach below.[29] Elsewhere the
criminal was thrown into the harbour at high tide; elsewhere, again, he
was burnt.[30]
In his “Description of England,” forming part of Holinshed’s Chronicle,
Harrison tells of ways of execution in practice when he wrote, about
1580: “He that poisoneth a man is to be boiled to death in water or lead,
although the party die not of the practise.” Harrison is here mistaken.
The enactment of boiling to death was due to one malefactor, who achieved
the rare distinction of having an Act of Parliament directed against
himself. The Act, 22 Henry VIII. (1530-1) c. 9, tells the story. It
begins by stating that the crime of poisoning has in this realm been most
rare, and continues thus:—
“And now in the tyme of this presente parliament, that is to
saye in the xviijᵗʰ daye of Februarye in the xxij yere of his
moste victorious reygn, one Richarde Roose late of Rouchester
in the Countie of Kente coke, otherwyse called Richarde Coke,
of his moste wyked and dampnable dysposicyon dyd caste a
certeyne venym or poyson into a vessell replenysshed with
yeste or barme stondyng in the Kechyn of the Reverende Father
in God John Bysshopp of Rochester at his place in Lamehyth
Marsshe, wyth whych Yeste or Barme and other thynges convenyent
porrage or gruell was forthwyth made for his famylye there
beyng, whereby nat only the nombre of xvij persons of his
said famylie whych dyd eate of that porrage were mortally
enfected and poysoned and one of them that is to say, Benett
Curwen gentylman thereof ys decessed, but also certeyne pore
people which resorted to the sayde Bysshops place and were
there charytably fedde with the remayne of the saide porrage
and other vytayles, were in lyke wyse infected, and one pore
Woman of them that is to saye, Alyce Tryppytt wydowe is also
thereof nowe deceased: OUR SAYDE SOVEREIGN LORDE THE KYNGE of
hys blessed disposicion inwardly abhorryng all such abhomynable
offences because that in no maner no persone can lyve in
suretye out of daunger of death by that meane yf practyse
thereof shulde not be exchued, hath ordeyned and enacted by
auctorytie of thys presente parlyament that the sayde poysonyng
be adjudged and demed as high treason, And that the sayde
Richarde Roose for the sayd murder and poysonynge of the sayde
two persons as is aforesayde by auctorite of thys presente
parlyament shall stande and be attaynted of highe treason:
And by cause that detestable offence nowe newly practysed and
commytted requyreth condigne punysshemente for the same: It is
ordeyned and enacted by auctoritie of this presente parliament
that the said Richard Roose shalbe therfore boyled to deathe
withoute havynge any advauntage of his clargie.”
The Act goes on to declare that in future murder by poisoning shall be
deemed to be high treason, punishable by boiling to death.
This was the sequel:—
“=1531.= The 5. of Aprill one Richard Rose a cooke, was boiled
in Smithfielde, for poisoning of diuers persons, to the number
of 16, or more, at yᵉ bishop of Rochesters place, amongst the
which Benet Curwine Gentleman was one, and hee intended to haue
poisoned the Bishop himselfe but hee eate no pottage that day
whereby hee escaped: marie the poore people that eate of them,
many of them died” (Stow’s Annals, ed. 1615, p. 559).
Stow records another case in 1542, March 17, when Margaret Davy, a
maid-servant, was boiled in Smithfield for poisoning three households in
which she had lived.[31]
To continue with Harrison: If one “be conuicted of wilfull murther, doone
either vpon pretended malice, or in anie notable robberie, he is either
hanged aliue in chaines neere the place where the fact was committed (or
else vpon compassion taken first strangled with a rope) and so continueth
till his bones consume to nothing.”
“Such as hauing wals and banks neere vnto the sea, and doo suffer the
same to decaie (after conuenient admonition) whereby the water entereth
and drowneth vp the countrie, are by a certeine custome apprehended,
condemned, and staken in the breach, where they remaine for euer as
parcell of the foundation of the new wall that is to be made vpon them,
as I haue heard reported.” This also is strange, showing that a machine
practically identical with the guillotine was in use in England centuries
before the re-invention of the machine by Dr. Guillotin:—
“There is and hath beene of ancient time a law or rather
a custome in Halifax, that who soeuer dooth commit anie
fellonie, and is taken with the same, or confesse the fact vpon
examination: if it be valued by foure constables to amount
to the sum of thirteene pence halfe penie, he is foorthwith
beheaded upon one of the next market daies.… The engine
wherewith the execution is doone, is a square block of wood
of the length of foure foote and an halfe, which dooth ride
vp and downe in a slot, rabet, or regall betweene two peeces
of timber, that are framed and set vpright of fiue yardes in
height. In the neather end of the sliding blocke is an ax keied
or fastened with an iron into the wood, which being drawne
vp to the top of the frame is there fastned by a wooden pin
(with a notch made into the same after the manner of a Samsons
post) vnto the middest of which pin also there is a long rope
fastened that commeth downe among the people, so that when the
offendor hath made his confession, and hath laid his necke ouer
the neathermost blocke, euerie man there present dooth either
take hold of the rope (or putteth foorth his arme so neere to
the same as he can get, in token that he is willing to see true
iustice executed) and pulling out the pin in this maner, the
head blocke wherein the ax is fastened dooth fall downe with
such a violence, that if the necke of the transgressor were so
big as that of a bull, it should be cut in sunder at a stroke,
and roll from the bodie by an huge distance. If it be so that
the offendor be apprehended for an ox, oxen, sheepe, kine,
horsse, or anie such cattell: the selfe beast or other of the
same kind shall haue the end of the rope tied somewhere vnto
them, so that they being driuen doo draw out the pin wherby the
offendor is executed.”[32]
Harrison says that “we have vse neither of the wheele nor of the barre,
as in other countries,” and these punishments are not to be found in the
chronicles.
A favourite story of the Middle Ages is that of the unjust judge,
Sisamnes, flayed alive by order of Cambyses. This punishment is one not
likely to have been overlooked. In the “Laws of Henry I.” (so called),
we find scalping and flaying mentioned as punishments (comacio and
excoriacio[33]). It is certain that the punishment was not absent from
men’s minds. In 1176, the secretary of the young king was discovered to
be in correspondence with Henry II. He was thought worthy of death; some
proposed that he should be hanged, others that he should be flayed alive
(vivum excoriari[34]). I have not found a written record of execution in
England by flaying alive, but there exists singular and terrible indirect
evidence of the infliction of the punishment in a very remarkable case.
In 1303 was successfully carried out a burglary which after six centuries
remains the greatest burglary on record, the amount involved being
£100,000, equal to £2,000,000 in money of the present day. The palace
of the king at Westminster was contiguous to the abbey. In the King’s
treasury were lodged at the time in question not only the regalia, but a
large sum of money destined to the carrying on of the war in Scotland.
Edward I. left Westminster on March 14th and travelled towards Scotland,
reaching Newcastle on May 6th. Shortly before this date the treasury was
broken into and its treasure carried off. The robbery being discovered,
forty-one friars and thirty-four monks were committed to the Tower. The
burglary had been skilfully planned. Early in the spring the cemetery—the
plot enclosed by the cloisters—was sown with hemp, so that the hemp
should grow high enough by the time fixed for the robbery to hide the
treasure. Mr. Joseph Burtt, who has told the story at length, came to the
conclusion that “the affair was evidently got up between William, the
sacrist of Westminster, Richard de Podlicote, a merchant, and the keeper
of the palace, with the aid of their immediate servants and friends.”[35]
Ten monks and one cleric were arraigned, but, refusing to be tried by
secular judges, were remanded to the Tower. But the judges “condemned the
sacrist of Westminster for receiving and concealing jewels of our lord
the king.” Strangely enough, there is no record of his sentence.[36] But
certain doors giving access to the treasury were found to be covered,
inside and outside, with skin. Sir Gilbert Scott submitted a piece to an
eminent microscopist, Mr. Quekett, who pronounced it to be human skin.
There has been vague talk of “the skins of Danes” in connection with the
lining of these doors, but Dean Stanley, who says that the skin is that
of “a fair-haired, ruddy-complexioned man,” is of opinion that there is
no period to which these fragments of skin can be so naturally referred
as to that of the burglary.[37]
Here is the record of a punishment, the only one of its kind I have found
recorded:—