Little could the pioneers foresee of the triumphs of their s

Produced by Brian Coe and the Online Distributed

Proofreading Team at http://www.pgdp.net (This file was

produced from images generously made available by The

Internet Archive/Canadian Libraries)

Transcriber’s Note: Corrections have been made to a small number of

evident typos, but otherwise the text is as printed, with inconsistent

spelling, hyphenation, punctuation and general style. Italic text is

indicated _like this_, bold =like this=.

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:—

Tyburn Tree: Its History and Annals · 第 1 / 22 段