complied with, they again retired, returning after a brief interval with
their verdict in writing. They found Penn "guilty of speaking or preaching
to an assembly met together in Gracechurch Street," and Mead not guilty.
"Gentlemen," said the Recorder, regarding the jury angrily, "you shall not
be dismissed till we have a verdict that the court will accept; and you
shall be locked up, without meat, drink, fire, and tobacco. You shall not
think thus to abuse the court. We will have a verdict, or you shall starve
for it."
Penn protested against this course, upon which the Recorder ordered the
officers of the court to stop his mouth or remove him. The jury not
leaving their box, the Recorder again directed them to retire and
re-consider their verdict. Penn made a spirited remonstrance. "The
agreement of twelve men," said he, "is a verdict in law, and such a one
having been given by the jury, I require the clerk of the peace to record
it, as he will answer at his peril. And if the jury bring in another
verdict contradictory to this, I affirm they are perjured men in law. You
are Englishmen," he added, turning to the jury, "mind your privilege; give
not away your right." The court then adjourned to the following morning,
when the prisoners were brought to the bar, and the jury, who had been
locked up all night, were sent for. They were firm of purpose, and through
their foreman persisted in their verdict.
"What is this to the purpose?" demanded the Recorder, "I will have a
verdict." Then addressing a juror, named Bushel, whom he had threatened on
the previous day, he said, "you are a factious fellow; I will set a mark
on you, and whilst I have anything to do in the city, I will have an eye
on you."
Penn again protested against the jury being threatened in this manner,
upon which the Lord Mayor ordered that his mouth should be stopped, and
that the gaoler should bring fetters and chain him to the floor; but it
does not appear that this was done. The jury were again directed to retire
and bring in a different verdict, and they withdrew under protest, the
foreman saying, "We have given in our verdict, and all agreed to it; and
if we give in another, it will be a force upon us to save our lives."
According to the narrative written by Penn and Mead, and quoted in
Forsyth's "History of Trial by Jury," this scene took place on Sunday
morning, and the court adjourned again to the following day, when, unless
they were supplied with food surreptitiously, they must have fasted since
Saturday. The foreman gave in their verdict in writing, as before, to
which they had severally subscribed their names. The clerk received it,
but was prevented from reading it by the Recorder, who desired him to ask
for a "positive verdict."
"That is our verdict," said the foreman. "We have subscribed to it."
"Then hearken to your verdict," said the clerk. "You say that William Penn
is not guilty in manner and form as he stands indicted; you say that
William Mead is not guilty in manner and form as he stands indicted; and
so say you all."
The jury responded affirmatively, and their names were then called over,
and each juror was commanded to give his separate verdict, which they did
unanimously.
"I am sorry, gentlemen," the Recorder then said, "you have followed your
own judgments and opinions, rather than the good and wholesome advice
which was given you. God keep my life out of your hands! But for this the
court fines you forty marks a man, and imprisonment till paid."
Penn was about to leave the dock, but was prevented from doing so, upon
which he said, "I demand my liberty, being freed by the jury."
"You are in for your fines," the Lord Mayor told the prisoners.
"Fines, for what?" demanded Penn.
"For contempt of court," replied the Lord Mayor.
"I ask," exclaimed Penn, "if it be according to the fundamental laws of
England, that any Englishman should be fined or amerced but by the
judgment of his peers or jury; since it expressly contradicts the
fourteenth and twenty-ninth chapters of the Great Charter of England,
which say, 'No freeman ought to be amerced but by the oath of good and
lawful men of the vicinage.'"
"Take him away," cried the Recorder.
"They then," continues the narrative, "hauled the prisoners into the
bail-dock, and from thence sent them to Newgate, for non-payment of their
fines; and so were their jury. But the jury were afterwards discharged
upon an _habeas corpus_, returnable in the Common Pleas, where their
commitment was adjudged illegal." Even then, judges appear to have
remained unconvinced of the illegality of the practice, or stubborn in
their desire to enforce their own views or wishes upon juries; for the
question was not regarded as finally settled until the decision in the
Court of Common Pleas was clinched, in the same year, by a similar
judgment of the Court of King's Bench.
Barbarous Punishments.
BY SIDNEY W. CLARKE.
That the world has become more merciful as it has grown older, is a truism
at once apparent to anyone who gives even a cursory glance at any of the
numerous works dealing with the criminal laws of the olden time. Still the
approach to the most excellent quality has been regretably and painfully
slow, and it is surely a stain on the boasted enlightenment of the
nineteenth century, that the century had run through nearly three-fourths
of its existence before the terrible and vindictive punishment of drawing
and quartering disappeared from our statute book. In most States the early
laws have been of a blood-thirsty and fear-inspiring nature, but what
excuse can be urged for the fact that until the fourth day of July, in the
year of Grace 1870, the punishment ordained by law for the crime of high
treason, was that the unfortunate offender should be drawn on a hurdle to
the place of execution, there to be hanged by the neck till he be dead;
that his head be severed from his body; that his body be divided into four
quarters; and that his head and quarters be at the disposal of the Crown.
In Blackstone's time the sentence was still more savage, or, as the great
Commentator puts it, "very solemn and terrible." It was that the offender
be drawn to the gallows, and not be carried or walk; "though usually,"
says Blackstone, "by connivance, at length ripened by humanity into law, a
sledge or hurdle was allowed to preserve the offender from the extreme
torment of being dragged on the ground or pavement;" that he be hanged by
the neck and then cut down alive; that his entrails be taken out, and
burned before his eyes, while he was still alive; that his head be cut
off, his body be divided into four parts, and his head and quarters be at
the King's disposal. What our tender-hearted monarchs did with the
quivering pieces of flesh let the stones of Temple Bar, the City Gates,
and the Tower bear witness. Here are a couple of extracts from that
perennial fountain of information, the diary of Mr. Samuel Pepys. Under
date of October 13th, 1660, he writes, "I went out to Charing Cross to see
Major-General Harrison," one of the regicides, "hanged, drawn, and
quartered, which was done there, _he looking as cheerful as any man could
do in that condition_." Note the grim humour of the words in italics. "He
was presently cut down, and his head and heart shown to the people, at
which there was great shouts of joy." Again, on October 20th, in the same
year:--"This afternoon going through London and calling at Crowe's, the
upholsterer's, in St. Bartholomew's, I saw the limbs of some of our new
traytors set upon Aldersgate, which was a sad sight to see; and a bloody
week this and the last have been, there being ten hanged, drawn, and
quartered."
It will be observed that the masculine gender is used in the foregoing
sentences for high treason; for, if the offender was a woman, the law with
a delicacy (!) one would hardly have expected, recognised that "the
decency due to the sex forbids the exposing and publicly mutilating their
bodies;" so a woman was simply to be drawn to the gallows, and there
burned alive. And these punishments for treason Sir Edward Coke attempted
to justify on Scriptural grounds, adding "it is punishment undoubtedly
just, for our liege lord the King is lord of every one of our members,
and they have severally conspired against him, and should each one
suffer." Evidently justice has not always spelt humanity.
Another of the horrible punishments decreed by English law was that of
boiling to death, which in the reign of Henry VIII. was inflicted for
poisoning, and recalls the most cruel tortures of China and the Orient,
where slicing to death and impalement alive are or were common forms of
punishment. The awful fate of being boiled alive was specially devised for
the benefit of John Roose, a cook, who had been convicted of throwing
poison into a pot of broth intended for the family of the Bishop of
Rochester and for the poor of the Parish; in 1542, Margaret Davey suffered
the same lingering death at Smithfield. So fearful were our ancestors of
poison, that in Scotland, in 1601, Thomas Bellie, a burgess of Brechin,
and his son were banished for life by the High Court of Justiciary, for
the heinous offence of poisoning a couple of troublesome hens belonging to
a neighbour. Even the laws of Draco, said on account of their severity to
have been written not in ink but in blood, can scarcely compete with these
examples of British barbarity.
Among the Romans strangulation, precipitation from a rocky height (a mode
of carrying out the death sentence still found amongst savage tribes), and
lashing to death were forms of punishment. Soldiers guilty of military
offences had to run the gauntlet. Upon a given signal all the soldiers of
the legion to which the offender belonged fell upon him with sticks and
stones, and generally killed him on the spot. If, however, he succeeded in
making his escape, he was thenceforth an exile from his native country.
Offending slaves were first scourged and then crucified. They were
compelled to carry the cross to the place of execution, and after being
suspended were left to perish by slow degrees. Crucifixion was abolished
throughout the Roman Empire by Constantine, out of reverence to the sacred
symbol. Other cruel punishments were burning alive, exposure to wild
animals, and condemnation to fight as gladiators in the arena for the
amusement of the citizens. The second of these modes of death, for death
was the invariable result, was the one usually meted out to the early
Christians--"If the Tiber overflows its banks; if there be a famine or
plague; if there be a cold, a dry, or a scorching season; if any public
calamity overtakes us; the universal cry of the people is--"To the lion
with the Christians _Christiani ad leonem_!"
Parricide was punished in a strange manner. The criminal, after being
scourged, was tied or sewed up in a leather bag, with a dog, a cock, a
viper, and an ape to keep him company, and so cast into the sea. The
Egyptians punished the same offence by sticking the prisoner all over with
pointed reeds, and then throwing him upon a fire of burning thorns, where
he lay till he was consumed.
With most nations the _Lex talionis_, or punishment of retaliation--an eye
for an eye, a limb for a limb--has found a place in the penal system. It
was not, indeed, always carried out to its logical conclusion, but rather
became the subject of many subtle distinctions. Among the Athenians, Solon
decreed that whoever put out the eye of a one-eyed person should for so
doing lose both his own. But what, it was asked, should be done where a
one-eyed man happened to put out one of his neighbour's eyes? Should he
lose his only eye by way of retaliation? If so, he would then be quite
blind, and would so suffer a greater injury than he had caused. The law of
the Jews and Egyptians compelled anyone, who without lawful excuse was
found with a deadly poison in his possession, to himself swallow the
poison. An instance of a kind of _lex talionis_ in our own country is
found in the reign of Edward I., when incendiaries were burnt to death.
Another example is that, from the reign of Henry VIII. to that of George
IV., to strike a blow and draw blood within the precincts of the King's
palace, entailed on the offender the loss of his right hand. Here are some
of the regulations prescribed by the statute 33 Henry VIII., chapter 12,
for the infliction of the punishment:--
"viii. And for the further declaration of the solemn and due
circumstance of the execution appertaining and of long time used and
accustomed, to and for such malicious strikings, by reason whereof
blood is, hath been, or hereafter shall be shed against the King's
peace. It is therefore enacted by the authority aforesaid, that the
Sergeant or Chief Surgeon for the time being, or his deputy of the
King's household, his heirs and successors, shall be ready at the time
and place of execution, as shall be appointed as is aforesaid, to sear
the stump when the hand is stricken off.
"ix. And the Sergeant of the Pantry shall be also then and there ready
to give bread to the party that shall have his hand so stricken off.
"x. And the Sergeant of the Cellar shall also be then and there ready
with a pot of red wine to give the same party drink after his hand is
so stricken off and the stump seared.
"xi. And the Sergeant of the Ewry shall also be then and there ready
with cloths sufficient for the Surgeon to occupy about the same
execution.
"xii. And the Yeoman of the Chandry shall also be then and there, and
have in readiness seared cloths sufficient for the Surgeon to occupy
about the same execution.
"xiii. And the Master Cook shall be also then and there ready, and
shall bring with him a dressing-knife, and shall deliver the same
knife at the place of execution to the Sergeant of the Larder, who
shall be also then and there ready, and hold upright the
dressing-knife till execution be done.
"xiv. And the Sergeant of the Poultry shall be also then and there
ready with a cock in his hand, ready for the Surgeon to wrap about the
same stump, when the hand shall be so stricken off.
"xv. And the Yeoman of the Scullery to be also then and there ready,
and prepare and make at the place of execution a fire of coals, and
there to make ready searing-irons against the said Surgeon or his
deputy shall occupy the same.
"xvi. And the Sergeant or Chief Ferror shall be also then and there
ready, and bring with him the searing-irons, and deliver the same to
the same Sergeant or Chief Surgeon or to his deputy when they be hot.
"xvii. And the Groom of the Salcery shall be also then and there ready
with vinegar and cold water, and give attendance upon the said Surgeon
or his deputy until the same execution be done.
"xviii. And the Sergeant of the Woodyard shall bring to the said place
of execution a block, with a betil, a staple, and cords to bind the
said hand upon the block while execution is in doing."
In addition to losing his hand, the unfortunate offender was imprisoned
for life. It was not until 1829 that this punishment was abolished, after
having been in existence for a period of 287 years.
A curious mode of punishment, intended to make its victim the object of
popular ridicule, was in vogue in the ancient German Empire, where persons
who endeavoured to create tumults and to disturb the public tranquility
were condemned to carry a dog upon their shoulders from one large town to
another.
The penal laws of France were every wit as inhuman as our own--burning
alive, breaking on the wheel, hanging, beheading, and quartering were
common forms of punishment. Awful atrocities were committed on living
victims, such as tearing off the flesh with red-hot pincers, pouring
molten lead and brimstone into the wounds, and cutting out the tongue. The
following is the sentence passed upon Ravaillac, the assassin of Henry
IV., in 1610:--He was first to be privily tortured and then carried to
the place of execution. There the flesh was to be torn with red-hot
pincers from his breasts, his arms and thighs, and the calves of his legs;
his right hand, holding the knife wherewith he committed his crime, was to
be scorched and burned with flaming brimstone; on the places where the
flesh had been torn off a mixture of melted lead, boiling oil, scalding
pitch, wax, and brimstone was to be poured; after this he was to be torn
in pieces by four horses, and his limbs and body burned to ashes and
dispersed in the air. His goods and chattels were confiscated; the house
in which he was born was pulled down; his father and mother were banished,
and his other relatives commanded to change the name of Ravaillac for some
other. This sentence was not, surely, a vindication of outraged justice,
but rather a purile and barbarous legal revenge.
To return to the laws of our own country. Mutilation of one sort or
another was long a favourite mode of punishment; pulling out the tongue
for slander, cutting off the nose for adultery, emasculation for
counterfeiting money, and so on. In Foxe's "Book of Martyrs" there is an
account of a miracle which was worked on the person of a mutilated
criminal. A Bedfordshire man was convicted of theft, and for his crime
his eyes were pulled out and other abominable mutilations were inflicted
on him. The sufferer repaired to the shrine of St. Thomas at Canterbury,
where after devout and steadfast prayer the parts he had lost were, so we
are told, miraculously restored. Anyone who fought with weapons in a
church had an ear cut off, or if he had already lost both his ears was
branded in the cheek with the letter F.
By an Act passed in the reign of Queen Elizabeth, the punishment for
forgery was that the offender should stand in the pillory and have his
ears cut off by the common hangman, his nostrils slit up and seared, and
then suffer imprisonment for life. In 1731 Joseph Cook, aged 70 years,
underwent this punishment, the mutilation taking place while he stood in
the pillory at Charing Cross.
The Coventry Act (22-23 Charles II., chapter 1.) was passed in consequence
of Sir John Coventry having been assaulted in the street and his nose
slit, out of revenge as was supposed. It enacted that if any person should
of malice, aforethought, and by lying in wait, cut out or disable the
tongue, put out an eye, slit the nose, or cut off or disable any limb or
member of any other person, with intent to maim or to disfigure him, such
person, his councillors, aiders, and abettors, should be guilty of felony
without benefit of clergy, which implied the punishment of death. This Act
was not repealed until 1828, and resulted in at least one curious case. In
1772, one Coke and a labourer named Woodburn were indicted under the
Act--Coke for hiring and abetting Woodburn, and Woodburn for the actual
offence of slitting the nose of one Crispe, who was Coke's brother-in-law.
The intention of the accused was to murder Crispe, and they left him for
dead, having terribly hacked and disfigured him with a hedge-bill, but he
recovered. An attempt to murder was not then a felony, but under the
Coventry Act to disfigure with an intent to disfigure was; and the accused
were indicted for the latter offence. Coke, in the course of his defence,
raised the point that the attack on Crispe was made with intent to murder
him and not with intent to disfigure, therefore, he contended, the offence
was not within the statute under which he was indicted. But the court held
that if a man attacked another intending to murder him, with such an
instrument as a hedge-bill, which could not but endanger a disfiguring of
the victim, and in such attack happened not to kill but only to
disfigure, he might be indicted for disfiguring. The jury found the
prisoners guilty, and they were condemned and duly executed.
The laws for the protection of trade decreed many cruel punishments. Thus,
in the reign of Elizabeth, an Act passed for the encouragement of the
woollen industry prescribed that the penalty for taking live sheep out of
the country should be forfeiture of goods, imprisonment for a year, and
that at the end of the year the left hand of the prisoner should be cut
off in a public market, and be there nailed up in the most public place. A
second offence was punishable with death. By statute 21 James I. chapter
19, anyone unfortunate enough to become a bankrupt was nailed by one ear
to the pillory for two hours, and then had the ear cut off. Under the
Romans a bankrupt was treated still more unmercifully, for at the option
of his creditors he was either cut to pieces or sold to foreigners beyond
the Tiber.
A longstanding disgrace to the intelligence and humanity of our countrymen
was the fact that in former times burning alive was the inevitable fate of
poor wretches convicted of witchcraft, the penal laws against which were
not repeated until 1736. So late as 1712, five so called witches were
hung at Northampton, and in 1716 Mrs. Hicks, and her daughter, aged nine,
were condemned to death at Huntingdon for selling their souls to the
devil. Even children of tender years were not spared, but with their
elders alike fell victims to our law's barbarity; there are many recorded
instances of children under ten years of age being executed. In Scotland
the last execution for witchcraft took place in 1722.
Space will not permit any attempt to run through the whole gamut of legal
iniquities; at most we can only attempt a very incomplete catalogue of the
inhumanities at one time or another incident to our penal codes, and with
a final horror we must bring this article to an end. The punishment with
which we are now about to deal, that of pressing to death, _peine forte et
dure_ as it was called, is perhaps the most noteable example of the former
barbarity of our law, since it was inflicted before trial on innocent and
guilty alike, who refused to plead "Guilty" or "Not Guilty" to an
indictment for felony. What this punishment was, which was first
instituted in 1406, can best be told by giving the form of the judgment of
the court against the person who refused to plead:--That the prisoner
shall be remanded to the place from whence he came, and put in some low,
dark room, and that he shall lie without any litter or other thing under
him, and without any manner of covering; that one arm shall be drawn to
one quarter of the room with a cord and the other to another, and that his
feet shall be used in the same manner; and that as many weights shall be
laid upon him as he can bear, and more; that he shall have three morsels
of barley bread a day, and that he shall have the water next the prison,
so that it be not current; and that he shall not eat the same day on which
he drinks, nor drink the same day on which he eats; and that he shall
continue so till he die or answer.