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:—

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:—

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:—

There is another story, of about the same time, telling of a religious maniac, done to death in an abnormal way:—

So we read in Gregory’s Chronicle. In the Grey Friars’ Chronicle we find this:—

This explains the meaning of “cursyde” in the other chronicle.

The Chronicle of London (1827) says:—

Capgrave, who wrote much later, but no doubt had before him some old writer, tells of a similar case of religious mania:—

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:—

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:—

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:—

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:—

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:—

Britton, supposed to have written about sixteen years later than the statute, in 1291 or 1292, thus states the punishment:—

“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:—

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.”

Where the accused was not possessed of land, the practice can be explained by either of two suppositions: either the prisoner refused to recognise the authority of the tribunal, or he desired to save his family from the reproach of a public execution of one of its members. This was the reason alleged to the ordinary of Newgate by Spiggott. A few years earlier, in 1721, Nathaniel Hawes, a highwayman, refused to plead because a handsome suit of clothes had been taken from him, and he was resolved not to go to the gallows in a shabby suit. He gave in when he had borne a weight of 250 lbs. for about seven minutes.[63]

Spiggott, as has been said, bore 350 lbs. for half an hour, and gave way when a further weight of 50 lbs. was put upon him. These cases show that the judges had reverted to the old view that the punishment was inflicted for the purpose of inducing the prisoner to plead.

Another milder form of torture was practised in connection with the peine forte et dure. It is first revealed in the report of a case which was tried at the Newgate Sessions in 1663:—

There was no legal authority whatsoever for this punishment.

By 12 George III. (1772), c. 20, it was enacted that persons thereafter arraigned for felony or piracy, standing mute, should be convicted of the crime charged against them. Such a case occurred in 1777.

Francis Mercier was arraigned at the Old Bailey sessions, beginning on December 3, 1777, for the murder of David Samuel Moudrey. He stood mute. A jury was immediately impannelled by the sheriff to inquire whether he stood mute fraudulently, wilfully, and obstinately, or by the providence and act of God. This jury found that he stood mute fraudulently, upon which Mr. Justice Aston (in the absence of the Recorder) at once passed sentence upon him that he should be executed and his body be afterwards dissected and anatomised. He was hanged at the end of Princes Street, Swallow Street (now Princes Street, Hanover Square).

By 7 and 8 George IV. (1827), c. 28, it was enacted that if a prisoner refused to plead, the court might order a plea of “Not Guilty” to be entered.

It had taken five and a half centuries to discover this simple solution of the difficulty.

THE HANGMAN.

Something must be said about that useful public servant, the executioner. Selected by the State to carry out its decrees, it would seem that he should have been invested with a dignity but little inferior to that of the judges who pronounced the sentence carried out by him in co-partnership. Without the practical assistance of the executioner, the solemn sentence of the robed, ermined, and full-bottom-wigged judge would be of no effect. Nevertheless, this officer of the State, practically inculcating on the scaffold the great truths of morality impressed on the public from the bench, this great public officer has never received the homage due to him. In France the executioner is—or was—“the executor of high works,” with us he has always been merely “the common hangman.” Of the many instances of public ingratitude, this is perhaps the most scandalous. Nor have posthumous honours in the smallest degree compensated for want of respect during life. The statues of London are, with few exceptions, and these recent, almost wholly devoted to royal personages, to soldiers, and to ground landlords. Among them we seek in vain monuments to the executive officer, without whose aid law and order would have been mere empty names. That great work, the Dictionary of National Biography, has done something to redeem this neglect by recording such rare facts as may be discovered in the biographies of hangmen. For this we may be grateful: it is at least a beginning.

Cunningham, in his “Handbook of London,” a compilation displaying marvellous industry, says that “the earliest hangman whose name is known was called Derrick.” This is a mistake. There are two, or perhaps three, predecessors whose names have been recorded. Of these predecessors of Derrick, the first is Cratwell, whose execution was witnessed by the chronicler Hall in 1538. Then comes an officer whose name a careless country has omitted to preserve, “the hangman with the stump-leg,” who, alas! was also hanged, reaching this end to his career in 1556.[65] A third possible predecessor of Derrick is known only by name. At the trial of Garnet, in 1606, the Earl of Northampton made a speech of which he thought so highly that he afterwards amplified and enlarged it for publication. Here is a specimen of what he would have liked to say had he been permitted:—

Bull is also mentioned in “Tarlton’s Jests.”

Either before or after Bull came Derrick, hangman in the reign of James I. He is mentioned in Dekker’s “Bellman of London,” 1608, and was famous; for half a century later his name was a term of abuse.[67] It is said that in some way, not clear, he gave his name to the form of crane known as a derrick.

According to the Dictionary of National Biography, Derrick was succeeded by Gregory Brandon. When Cunningham wrote there was a tradition that Brandon was of good family, and had a grant of arms. But it has since been found that the story had no better foundation than a practical joke:—