“=1222.= A Prouinciall councell was holden at Oxforde, by

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.”

Tyburn Tree: Its History and Annals · 第 2 / 22 段