Stephen Langton Archbyshoppe of Canterburie, and his suffragane
bishops and others.… There was also a young man and two women
brought before them, the yoong man would not come in any
church, nor be partaker of the Sacraments, but had suffered
himselfe to be crucified, in whom the scars of all yᵉ wounds
were to be seene, in his hands, head, side and feete, and he
reioyced to bee called Jesus of these women and other. One of
the women being olde, was accused for bewitching the young man
vnto such madnes, and also (altering her owne name) procured
her selfe to bee called Mary the mother of Christ: They being
conuict of these crimes and other, were adiudged to bee closed
vp betweene two walles of stone, where they ended their liues
in misery. The other woman being sister to the young man, was
let goe, because shee reuealed the wicked fact” (Stow, Annals,
p. 178).
There is another story, of about the same time, telling of a religious
maniac, done to death in an abnormal way:—
“A man that faynyd hym selfe Cryste at Oxynforde, he was
cursyde at Aldermanbery at London, the yere of oure Lorde
Mˡccxxij.”
So we read in Gregory’s Chronicle. In the Grey Friars’ Chronicle we find
this:—
“A man of Oxenford faynyd hym to be Cryst, and was crucified at
Addurbury.”
This explains the meaning of “cursyde” in the other chronicle.
The Chronicle of London (1827) says:—
“A man of Alderbery feynd hym Cryst, whiche was brought to
Oxon’ and there he was crucifyed” (p. 11).
Capgrave, who wrote much later, but no doubt had before him some old
writer, tells of a similar case of religious mania:—
“=1221.= There was accused eke a carl that procured men to
nayle him on a crosse: for in handis and feet were seyn the
woundes of the nayles, and in his side a wound eke: and in his
fonnednesse he wold sey that he was so arayed for savacion of
the world. He was put in prison for evyr, and nevyr to have
othir repast but bread and watir.”
It will be seen that these cases occurred about the same time.[38]
Was there an epidemic of religious mania, or is it possible that the
different records are all versions of the same story?
DRAWN, HANGED, AND QUARTERED.
There has been much confusion as to the punishment of “drawing,” forming
down to times comparatively recent a portion of the punishment awarded
to those found guilty of high treason. The correct order of the several
punishments in such cases is drawing, hanging, and quartering. But
to-day every one inverts the order, putting hanging first. Even the old
chroniclers sometimes make this mistake. The proper order is inverted
by Capgrave, the Grey Friars’ Chronicler, and by Latimer in his third
sermon. Owing to this mistake it has not infrequently been assumed that
drawing was a process following hanging, and consisted in drawing out the
bowels of the victim. In fact, drawing meant dragging along the ground.
There were three kinds of drawing. In the vast majority of cases drawing
means dragging to the place of execution, where hanging, disembowelling
and quartering followed. But drawing sometimes means dragging till the
sufferer died of the mere dragging. In some cases drawing means tugging
by horses in opposite directions till the sufferer was torn to pieces.
It is not in all cases easy to say what punishment is indicated by the
chroniclers, who use indifferently the words “tractus,” “detractus,” and
“distractus.”[39]
Examples of the first kind of drawing, dragging to the foot of the
gallows, for execution, are superabundant. There were degrees in this.
In the earliest times the victim, stripped to his shirt, with his arms
tied behind his back, was thus dragged along the rough and miry road—how
rough and miry it is almost impossible for us at this day to realise.[40]
That any human being could survive such a drawing from Newgate to Tyburn
is marvellous. But the way was not uncommonly longer, from the Tower to
Tyburn, or even longer still, from Westminster to the Tower, and then
from the Tower to Tyburn. In the case of William Longbeard,[41] it would
appear that sharp stones were placed on the road to be followed. But,
apart from any such aggravation, the sufferer would probably in most
cases be found at the end of the journey incapable of further suffering.
In 1295 Tuberville was drawn on a fresh ox-hide (sur un quir de bof
fres), and one of the chroniclers expressly states that he was so
drawn that he might not die too quickly.[42] Something was also due to
sentiments of humanity. There is a case recorded from which it is clear
that “humanitarianism” was as odious to the judges of old time as it is
to-day to the advocates of flogging. The case finds a record in the old
books, because in it the judge evidently strained the law. A man was
arraigned in 1340, before Justice Shard, on an indictment charging him
with the murder of “his master.” It was found that murder had indeed been
done by the man, who, however, had for a year ceased to be the murdered
man’s servant. Shard inquired whether the servant had not a grudge
against his master, and did he watch him? The questions were answered
affirmatively, and Shard sentenced the man to death as guilty of petty
treason—the punishment due to a servant who killed his master. Shard
ordered that the man should be drawn by horses from the court in which
he was tried, and forbade, under pain of imprisonment, that any friars or
other persons should place a hurdle or anything else under him.[43]
Whether owing to compassion or to the ferocity of judges who had
discovered that the drawing as at first practised rendered a victim
insensible to the spectacle of the burning of his own bowels, it is
certain that the ox-hide became an established institution, for in a case
later than Turberville we hear of “the common ox-hide.” This in its turn
gave place to the hurdle, and this to the sledge—no doubt to the infinite
disgust of judges like Shard.
The following is a case in which drawing was carried out till the death
of the sufferers from mere dragging:—
There were frequent and bitter disputes between the citizens of
Norwich and the prior. These disputes came to a head in 1271,
when, in a quarrel at the gates of the priory, two citizens
were killed. The townsmen flew to arms. The men of the priory
retreated within the walls and prepared for a siege. The
citizens, unable to force the gates of the priory, tore down
the doors of the church. The prior threatened excommunication:
the citizens demanded redress for the killing of two of their
number. Finally, the prior put in execution his threat of
excommunication: the citizens retorted by seizing provisions
on their way to the priory. The prior now disposed his men in
the belfry, and fighting went on for some days. At last the
citizens set fire to the belfry: the fire spread till almost
all the conventual buildings were destroyed. The citizens
rushed in, killing all, monks and laymen, they could find;
they destroyed everything on which they could lay hands. The
bishop and other priests gathered together outside Norwich,
excommunicated nine men by name, and all others who had taken
part in the matter. The case was grave: the king came down,
and spent twelve days in investigating the case, with the aid
of his justices, and forty knights as jurors. The finding was
that the prior was the cause of the burning of the church, and
the king therefore took the manors of the priory into his own
hands. But a terrible penalty was exacted from the citizens,
thirty-three of whom were put to death: some were hanged, some
burnt, others were drawn by horses (equis distracti). What is
meant in this case is revealed by one chronicler, who gives
details of the drawing: “Attached to horses by the feet, they
were dragged through the streets of the city till, after great
suffering, they ended their lives and expired.”[44]
The chroniclers record only, I think, one case in which it is made clear
the victim was actually dragged to pieces, as we see in old pictures of
the martyrdom of St. Hippolytus:—
“In 1238, King Henry III., being at Woodstock, a certain
learned squire came to the court. He feigned madness, and
demanded of the king that he should give up the crown. The
king’s attendants sought to drive him away, but the king
forbade this. In the middle of the night the man came again,
bearing an open knife. He made his way into the king’s
bed-chamber, but the king was not there, being with the queen.
But one of the queen’s maids, Margaret Bisseth, was awake, and,
sitting by the light of a candle, sang psalms (for she was a
holy maid, and one devoted to the service of God). Margaret
gave the alarm, and the man was secured. He declared that he
had been sent by William Marsh on purpose to kill the king.
On learning this, the king ordered that, as one guilty of an
attempt to kill the king’s majesty, he should be torn by horses
limb from limb, a terrible example, and a lamentable spectacle
to all who should dare to plot such crimes. In the first place
he was drawn asunder, then beheaded, and his body was divided
into three parts, each of which was dragged through one of the
greatest cities of England, and afterwards hung on the robbers’
gibbet.”[45]
We come now to the question of the punishment for high treason, regarded
as the greatest of all crimes, one therefore to be punished with all
possible severity. Treason was elaborately defined by 25 Edward III.,
st. 5. c. 2, but the statute does not prescribe punishment for the
offence. Treason seems to have been held to include a number of distinct
crimes, to each of which a distinct punishment was allotted. This is the
sentence when it had been settled in a form which, with an alteration to
be noted presently, endured for centuries:—
“1. That the aforesaid … be drawn to the gallows of …
2. He is there to be hanged by the neck, and let down alive.
3. His bowels are to be taken out,
4. And, he being alive, to be burnt.
5. His head is to be cut off.
6. His body is to be divided into four parts,
7. And his head and quarters are to be placed where our lord
the king shall direct.”
There is no doubt that, originally, the prisoner was drawn to the gallows
immediately after trial, but later, the first clause was made to run that
the prisoner should be taken from the court to the place whence he came
(the prison), and from thence to the place of execution. The sentence is
given in this later form by Sir William Stanford in his work, “Les Plees
del Coron.” 1560, fols. 182, 182b.
It is difficult to say when the sentence, as given above, was first
carried out. In relating the execution in 1283 of David, Prince of Wales,
the chroniclers give the several punishments in this order: drawing,
hanging, beheading, disembowelling, quartering.[46] This is not quite
conclusive, as will be seen by the next instance.
In 1305 we come to the condemnation and execution of Sir William Wallace.
The sentence, in a highly rhetorical form, states the punishments in
the order in which they are given in the case of Prince David, making
beheading precede disembowelling. But accounts of the execution given by
chroniclers leave no doubt that the punishments followed in what became
the usual order, namely, that Wallace, being let down alive, was first
disembowelled, beheading following, not preceding this.[47] It may well
be, therefore, that in the execution of David the order of punishments,
as carried out, differed from their order in the sentence. But we have
no evidence of this. Going on the evidence, we may say that in the case
of Wallace we have the first recorded instance in which what became the
usual punishment for treason was carried out.
It will be observed that the execution of Wallace (see footnote),
included ementulation (abscisis genitalibus) which was not prescribed by
the sentence. There is a mystery about this clause. It does not appear
in the form of sentence as given by Coke in his “Institutes,” yet in
passing sentence in 1615 on John Owen, _alias_ Collins, he expressly
includes ementulation, and gives elaborate reasons why this should form
part of the sentence. Again, taking a group of sentences passed in
connection with the Popish Plot, we find that ementulation forms part of
the sentence in the cases of Ireland, Pickering, and Grove, the “Five
Jesuits” and Langhorn, Lord Stafford, Lionel Anderson and others tried
with him. It is not found in the sentences passed on Stayley, Coleman,
Fitzharris, and Plunket. The law books throw no light on the point; one
only mentions the difference without attempting to explain it.[48]
It would seem that a Scot was the first on whom this horrible series of
punishments is recorded to have been inflicted. Scots were the last to
suffer the penalties of high treason, inflicted in their greatest rigour:
these were the men condemned for the Rebellion of 1745.
In July, 1746, seventeen were sentenced according to the usual form: of
these, eight were reprieved, the other nine being executed on Kennington
Common on July 30th. One of these was Townley:—
“After he had hung six minutes, he was cut down, and, having
life in him, as he lay upon the block to be quartered, the
executioner gave him several blows on his breast, which not
having the effect designed, he immediately cut his throat:
after which he took his head off: then ripped him open, and
took out his bowels and heart, and threw them into a fire which
consumed them: then he slashed his four quarters, and put them
with the head into a coffin, and they were carried to the new
gaol in Southwark, where they were deposited till Saturday,
August 2, when his head was put on Temple Bar, and his body and
limbs suffered to be buried.”[49]
The last exhibition of this kind was in 1820, when Thistlewood and four
others, some of them victims of a plot fostered by the Government, were
hanged outside Newgate, their heads being afterwards publicly cut off by
a masked man suspected to be a surgeon. The bodies were not quartered.
The thing had by this time degenerated into a brutal and bloody farce.
TORTURE AND PEINE FORTE ET DURE.
Sir Thomas Smith (1513-77), Secretary of State to Elizabeth, wrote a
book, “De Republica Anglorum,” not published till 1583. In it the author
says: “Torment or question, which is vsed by the order of the ciuill lawe
and custome of other countries, to put a malefactor to excessiue paine,
to make him confesse of him selfe, or of his fellowes or complices, is
not vsed in England, it is taken for seruile.… The nature of our nation
is free, stout, haulte, prodigall of life and bloud: but contumelie,
beatings, seruitude, and seruile torment and punishment it will not
abide.”
The statement that torture was not used in England is amazing, as it
is beyond doubt that Smith himself racked prisoners in 1571.[50] It
is, however, true that he expressed extreme reluctance to be put on
such work. Hallam is undoubtedly correct in saying that “the rack
seldom stood idle in the Tower for all the latter part of Elizabeth’s
reign.”[51] Indeed, there is a tract, attributed to Lord Burghley,
defending the manner in which torture had been applied to prisoners.[52]
It was published about the same time as Sir Thomas Smith’s book. But
torture, frequently as it was practised, never had the sanction of the
law of England. Coke, in the Third Part of his “Institutes,” written in
1628 (first published in 1644), declares: “There is no one opinion in
our books, or judiciall Record (that we have seen or remember) for the
maintenance of tortures or torments.” “So as there is no law to warrant
tortures in this land, nor can they be justified by any prescription,
being so lately brought in.”
It would be idle to speculate as to the amount of alleviation the
reflection that torture was illegal may have brought to Southwell, for
instance, who was racked ten several times.
A kind of torture, not however applied for the purpose of extracting
confessions, was recognised by the law. This was the Peine Forte et Dure,
“one of the most singular circumstances,” writes Sir James Fitzjames
Stephen, “in the whole of the criminal law.” It certainly is this: it is
moreover, a practice as to which even writers on our criminal law have
gone astray, not excepting Sir James himself.
It is a most remarkable example of judge-made law; the successive stages
of its growth can in some measure be traced. Its very name betrays the
change made in the punishment, as it is agreed that peine forte et
dure was originally “prison forte et dure.” The statutory basis of the
punishment is found in an Act, 3 Edward I. (1275), c. 12:—
“It is provided also, That notorious Felons, which openly be of
evil name, and will not put themselves in Enquests of Felonies
that Men shall charge them with before the Justices at the
King’s suit, shall have strong and hard Imprisonment (prison
forte et dure), as they which refuse to stand to the common Law
of the Land: But this is not to be understood of such prisoners
as be taken of light suspicion.”
Britton, supposed to have written about sixteen years later than the
statute, in 1291 or 1292, thus states the punishment:—
“And if they will not put themselves upon their acquittal, let
them be put to their penance until they pray to do it: and let
their penance be this, that they be barefooted, ungirt and
bareheaded, in the worst place in the prison, upon the bare
ground continually, night and day; that they eat only bread
made of barley or bran, and that they drink not the day they
eat, nor eat the day they drink, nor drink anything but water,
and that they be put in irons.”[53]
“Fleta,” written about the same time, contains similar details, expressly
stating that the punishment is to continue till those who refuse the law
“seek what they before contemned.”[54]
An actual case, not mentioned in the law books, is recorded in the
Chronicle of Bartholomew Cotton. In 1293, for the murder of some Dutch
sailors at Sniterleye, thirteen persons were hanged, and the bailiff
of the hundred, because he would not put himself upon the inquest (se
supponere inquisitioni), was sentenced to prison in this form, viz., that
on the day when he ate he should not drink, and the bread which he had
should be the worst bread, and the drink that he should have should be
putrid water, and that he should remain naked except for a linen garment,
and upon the naked ground, and that he should be loaded with iron from
the hands to the elbows, and from the feet to the knees, until he should
make his submission.[55]
That the “penance” was intended not to kill, but to induce the prisoner
to plead, is shown by cases in the Year Book of Edward I. In 1302 one
condemned to “the great penance” brought his charter of pardon into
court, by means of his friends, ten days after the judgment.[56] In 1357
Cecilia, wife of John de Rygeway, indicted for the murder of her husband,
stood mute, and was sentenced to imprisonment accordingly. In this case
it was reported to the king “on trustworthy testimony” that Cecilia
had lived without food or drink for forty days. This was regarded as
miraculous, and Cecilia was in consequence pardoned. Here, in intention
at least, the punishment went to the length of depriving of all food.[57]
In a case recorded in the Year Book of Henry IV. (1406) the court ordered
that, in addition to the punishment of being fed on the worst bread and
stagnant water, two thieves condemned to penance for standing mute should
have put upon them as great a weight as they could bear and more, and
should so remain till they were dead. But as Chief Justice Gascoigne, who
passed the sentence, afterwards said that the prisoners might live for
many years, the words “more than they can bear” cannot be supposed to
mean that the prisoners were to be pressed to death.[58]
The punishment reached its most terrible form in the reign of Elizabeth.
Harrison, in his “Description of England,” says:—
“Such fellons as stand mute and speake not at their
arraignement are pressed to death by huge weights laid vpon a
boord, that lieth ouer their brest, and a sharpe stone vnder
their backs, and these commonlie hold their peace, thereby to
saue their goods vnto their wiues and children, which if they
were condemned should be confiscated to the prince.”[59]
Here is another addition, the sharp stone under the back.
Harrison’s account is confirmed by two recorded cases. In 1586 Margaret
Clitherow was indicted at York for harbouring or relieving priests, a
capital offence. Refusing to plead, she was condemned by the judge to
the peine forte et dure, “so to continue for three days,” without food
or drink except barley bread and puddle water, “and a sharp stone under
your back.” The execution of the sentence is thus described: Her hands
and feet were tied to posts so that her body and arms made a cross. A
door was laid upon her. “After this they laid weight upon her, which when
she first felt, she said ‘Jesu! Jesu! Jesu! have mercy upon me!’ which
were the last words she was heard to speak. She was in dying one quarter
of an hour. A sharp stone, as much as a man’s fist, put under her back:
upon her was laid to the quantity of seven or eight hundredweight at
the least, which, breaking her ribs, caused them to burst forth of the
skin.”[60]
The other case is that of Major Strangewayes, indicted at the Old Bailey
on February 24, 1658-9, for the murder of his brother-in-law. He refused
to plead, and was sentenced to the peine forte et dure in the usual
terms. The press employed on this occasion was triangular in form, the
acute angle resting above the region of the heart. “He was prohibited
that usuall Favour in that kind, to have a sharp piece of Timber layed
under his Back to Accellerate its penetration.” The assistants “laid on
at first Weight, which finding too light for a sudden Execution, many of
those standing by, added their Burthens to disburthen him of his pain.…
In the space of eight or ten Minutes at the most, his unfettered Soul
left her tortur’d Mansion. And he from that violent Paroxisme falls into
the quiet sleep of Death.”[61]
From these two narratives and Harrison’s statement, in agreement with
them, it is clear that the punishment of peine forte et dure, originally
severe imprisonment, inflicted to induce a prisoner to plead, had in the
hands of the judges become a sentence of death far more painful than
hanging, so that one standing mute was more severely punished than if
he had been found guilty of the crime for which he was indicted. The
clauses of the sentence show a disordered growth in this severity. If a
man was to have laid upon him as great a weight as he could bear “and
more,” it was superfluous to make provision in the sentence for feeding
on alternate days a person who was destined to be pressed to death in a
few minutes. Sir William Staunforde, or Stanford, indeed, whose book,
“Les Plees del Coron,” was published in 1560, expressly contends that the
punishment was to continue, not until the prisoner would plead, but till
he was dead.
It appears from the cases recorded and from the passage quoted from
Harrison, that standing mute was a practice not uncommon. What was the
motive for refusing to plead? It is here that those who have written on
the subject have been mistaken. It has been generally assumed that the
object was to save the forfeiture of goods which would have followed on
a condemnation. This is incorrect. It is true that by standing mute the
accused could escape corruption of blood and forfeiture of lands, but
he did not thus avert forfeiture of goods and chattels. Sir William
Stanford says, after citing a sentence, “Observe that the judge does not
say, as Britton formerly said, that the punishment should continue till
the prisoner makes a direct answer, but that this shall be his diet till
he is dead, absolutely, without any condition in the sentence, express or
implied, that he shall be released from penance if he consents to plead.
For such a release has never at any time been seen, nor is it reasonable
that by such repentance the king should be deprived of the forfeiture of
the felon’s goods, to which he is entitled by the said judgment of peine
forte et dure.”[62] When, in 1721, Phillips and Spiggott stood mute, the
court gave orders that the sentence on such as refuse to plead should be
read to them. It concludes, “And he against whom the judgment shall be
given forfeits his goods to the king.”