Chapter 2

They have not the value, as material for investigating the social
condition of the time, of the more formal charges contained in the
Placita de Quo Waranto. Thus we find, in the Rotuli Hundredorum, that the
abbat of Westminster was presented by the jurors of three several wards
of the City of London as having gallows at Tyburn: in other cases gallows
are mentioned as erected by the abbat in Middlesex, two places only
being specified. But when we come to the Placita de Quo Waranto, we find
that the abbat had gallows in fifteen places in Middlesex in addition to
one in the ville of Westminster. These places were, Eye (a district of
Westminster), Teddington, Knightsbridge, Greenford, Chelsea, Brentford,
Paddington, Iveney, Laleham, Hampstead, Ecclesford, Staines, Halliford,
Westbourne, and Shepperton.[13]

This inquisition is not to be confounded with another, singularly called
“Trailbaston,” relating to criminal matters, as the other related to
civil affairs. “Trailbaston,” which may be rendered “Bludgeon-men,” has
sometimes been supposed to be so called from the justices themselves; but
it is more probable that, as we find the word in the earliest mention of
the subject, the bludgeon-men were those against whom operations were
directed, just as we might to-day speak of a “hooligan Act” if an Act
were specially devoted to these gentry.

The first official mention of Trailbaston is found in Rotuli
Parliamentorum, under date 1305, when it already bore the nickname
“Ordination de Trailbastons.” Justices were then assigned to inquire
as to murders and felonies committed during the last eight years. In
1306 the inquisition, as would seem, had not got to work, as the king
ordered that if the justices assigned are not sufficient for the duty, “a
parfaire les busoignes qe touchent les pledz de Traillebaston,” more are
to be assigned to the work. Five days later he sent a list of twenty-one
justices, and the thirty-eight counties allotted to them severally. The
inquisition of Trailbaston was found to work mainly as a great engine of
oppression. In 1377 the Commons petitioned that there may be no manner of
Trailbaston held in the realm during the war nor for twenty years. It is
alleged that both civil and criminal inquisitions had for object to bring
money into the exchequer by means of fines.[14]

To return to the subject of the multiplicity of courts. It is to be
supposed that, in the circumstances, there were frequently conflicts
between courts as to their respective jurisdiction. Of this conflict
we find curious instances in the chronicles. Thus, in 1249, a thief was
caught on the land of the abbat of Tewkesbury, but was suffered by the
abbat’s bailiffs to be taken to the court of the Earl of Gloucester.
After trial by this court the thief was hanged. On learning this, the
abbat was greatly incensed, seeing that the franchise of his church
had been invaded. Shortly after another case arose. John Milksop stole
thirty-one pence from Walter Wymund, of Bristol. As soon as Walter
discovered his loss, he raised the hue and cry, followed Milksop, traced
him to a wood, captured him, and brought him into the abbat’s court. The
earl’s bailiff protested: the abbat complained to the earl, who ordered
inquiry. As nothing came of this, a second order was issued, and twelve
persons were chosen to investigate the question. The abbat, finding the
inquiry going against him, protested against the manner of proceeding,
and went in person to the earl, then at some distance. The earl suggested
that the abbat should keep the accused in prison till the earl’s return
home. The abbat objected that he had neither castle nor prison in which
to keep the man for so long a time. Then the earl ordered a fresh inquiry
to be made against his return, the abbat meanwhile to try the man in
his own court, and to hang him on the earl’s gallows. Milksop was tried
accordingly, could make no good defence, and was hanged. The chronicle
does not tell the end of the dispute.[15]

In the twelfth century the district near Dunstable, where Watling Street
meets Icknield Street, was so infested by robbers that hardly could “a
lawful man” pass that way. The chronicler, whose etymology is not above
suspicion, states that Dunstable came by its name from one Dunning, a
famous robber who haunted the region. Henry I., towards the end of his
reign—say about 1130—founded Dunstable Priory, making over to it all his
rights, including a free gallows for hanging thieves outside the town of
Dunstable, in a place called Edescote.[16] The prior’s right was clear;
nevertheless, in 1274, Eudo la Suche threw down the prior’s gallows and
put up his own.[17]

Another instance. In 1290 Bogo de Knowill, the king’s bailiff of
Montgomery, complained to our lord the king that Edmund Mortimer had laid
hands upon a king’s man who had committed murder, had imprisoned him, in
spite of the bailiff’s demands, had refused to give him up, had tried
him in his own court, and hanged him, to the hurt of the franchise of
the town of Montgomery, and against the crown and its dignity, etc. The
king declared that Mortimer had forfeited his franchise of Wygemore, but
agreed to restore it on payment of a fine. But, in addition, Mortimer
must hand over to Bogo, the bailiff, an effigy, in the name and place of
the man who had been hanged, the bailiff to hang the effigy, and to let
it hang as long as may be. After a while, Mortimer complained that the
bailiff unjustly retained the franchise in the king’s hand. Whereunto
Bogo replied that the effigy had not been handed over to him, wherefore
he held the franchise aforesaid until, etc. And the king ordered that the
franchise should be held till the effigy should be handed over. This is
the last heard of Bogo, Mortimer, and the effigy.[18]

In such cases more was touched than the dignity of the lord of the
franchise. The concession of a franchise to hang generally included the
right to “catalla felonum,” the goods of felons and of fugitives. “These
courts,” says Sir James Fitzjames Stephen, “were a regular source of
income to the lord of the franchise.” Irregularities and tyrannies of
these petty courts, quarrelling over the right to imprison and hang, may
be assumed: we understand how it was that in popular risings the lawyers
were always singled out for vengeance.

How to execute? Even in regard to the way of mere hanging, the problem
presented difficulties. In France, a rigid etiquette guarded the method
of hanging. A franchise might give the right to hang upon trees only.[19]
Some gallows had two pillars, some three, four, six, eight, according to
the rank of the person erecting the gallows.[20] These nice distinctions
are not to be discovered in English customs. There are, however, traces
of strange practices. Four several bailiffs took part in the execution
of a man hanged on the gallows of the prior of Spalding. The bailiff of
Spalding brought the man to the gallows, the bailiff of Weston brought
the ladder to the gallows, the bailiff of Pyncebecke found the rope, the
rest was done by the bailiff of Multon.[21]

But hanging was one only out of numerous methods of carrying out a
capital sentence: ingenuity seems to have exhausted itself in devising
ways of putting a man to death. A law of Æthelstan decrees, “Let him be
smitten so that his neck break.”[22] When leaving England for Palestine,
Richard I. commanded that he who killed a man on board ship should be
tied to the corpse and thrown into the sea: if the murder was committed
on land, the murderer was to be buried alive with the body.[23] Boroughs
had their own several customs. In one place any man taking another who
had stolen to the value of 2s. 8½d., might forthwith hang him: for a
second offence the amount was reduced to 8¼d. In Romney, at the end of
the fifteenth century, the bailiff found the rope, the prosecutor was
bound to find a hangman. Failing this he must himself do the hanging,
or be put in prison with the felon till such time as he could find a
hangman, or resolve to hang the man with his own hands. In another place
a miller stealing flour to the value of 4d. was to be hanged from the
beam of his mill.[24] At Sandwich a murderer was buried alive on Thief
Down, where perhaps golf is now played.[25] In London, at the beginning
of the fourteenth century, a man convicted of treason in the court of
the mayor, was bound to a stake in the Thames during two flows and two
ebbs of the tide.[26] Two centuries later “pirats and robbers by sea are
condemned in the court of the admeraltie, and hanged on the shore at
lowe water marke, where they are left till three tides haue ouerwashed
them.”[27] At Fordwich, in the fifteenth century, a man condemned to
death was carried to a place called Thieves’ Well, there bound hand and
foot and thrown in by the prosecutor.[28] At Dover, the condemned man was
led to a cliff called Sharpnesse, and there executed by “infalistation,”
a word which puzzled the learned Selden. It means that the offender was
thrown over the cliff (falaise) on to the beach below.[29] Elsewhere the
criminal was thrown into the harbour at high tide; elsewhere, again, he
was burnt.[30]

In his “Description of England,” forming part of Holinshed’s Chronicle,
Harrison tells of ways of execution in practice when he wrote, about
1580: “He that poisoneth a man is to be boiled to death in water or lead,
although the party die not of the practise.” Harrison is here mistaken.
The enactment of boiling to death was due to one malefactor, who achieved
the rare distinction of having an Act of Parliament directed against
himself. The Act, 22 Henry VIII. (1530-1) c. 9, tells the story. It
begins by stating that the crime of poisoning has in this realm been most
rare, and continues thus:—

“And now in the tyme of this presente parliament, that is to
saye in the xviijᵗʰ daye of Februarye in the xxij yere of his
moste victorious reygn, one Richarde Roose late of Rouchester
in the Countie of Kente coke, otherwyse called Richarde Coke,
of his moste wyked and dampnable dysposicyon dyd caste a
certeyne venym or poyson into a vessell replenysshed with
yeste or barme stondyng in the Kechyn of the Reverende Father
in God John Bysshopp of Rochester at his place in Lamehyth
Marsshe, wyth whych Yeste or Barme and other thynges convenyent
porrage or gruell was forthwyth made for his famylye there
beyng, whereby nat only the nombre of xvij persons of his
said famylie whych dyd eate of that porrage were mortally
enfected and poysoned and one of them that is to say, Benett
Curwen gentylman thereof ys decessed, but also certeyne pore
people which resorted to the sayde Bysshops place and were
there charytably fedde with the remayne of the saide porrage
and other vytayles, were in lyke wyse infected, and one pore
Woman of them that is to saye, Alyce Tryppytt wydowe is also
thereof nowe deceased: OUR SAYDE SOVEREIGN LORDE THE KYNGE of
hys blessed disposicion inwardly abhorryng all such abhomynable
offences because that in no maner no persone can lyve in
suretye out of daunger of death by that meane yf practyse
thereof shulde not be exchued, hath ordeyned and enacted by
auctorytie of thys presente parlyament that the sayde poysonyng
be adjudged and demed as high treason, And that the sayde
Richarde Roose for the sayd murder and poysonynge of the sayde
two persons as is aforesayde by auctorite of thys presente
parlyament shall stande and be attaynted of highe treason:
And by cause that detestable offence nowe newly practysed and
commytted requyreth condigne punysshemente for the same: It is
ordeyned and enacted by auctoritie of this presente parliament
that the said Richard Roose shalbe therfore boyled to deathe
withoute havynge any advauntage of his clargie.”

The Act goes on to declare that in future murder by poisoning shall be
deemed to be high treason, punishable by boiling to death.

This was the sequel:—

“=1531.= The 5. of Aprill one Richard Rose a cooke, was boiled
in Smithfielde, for poisoning of diuers persons, to the number
of 16, or more, at yᵉ bishop of Rochesters place, amongst the
which Benet Curwine Gentleman was one, and hee intended to haue
poisoned the Bishop himselfe but hee eate no pottage that day
whereby hee escaped: marie the poore people that eate of them,
many of them died” (Stow’s Annals, ed. 1615, p. 559).

Stow records another case in 1542, March 17, when Margaret Davy, a
maid-servant, was boiled in Smithfield for poisoning three households in
which she had lived.[31]

To continue with Harrison: If one “be conuicted of wilfull murther, doone
either vpon pretended malice, or in anie notable robberie, he is either
hanged aliue in chaines neere the place where the fact was committed (or
else vpon compassion taken first strangled with a rope) and so continueth
till his bones consume to nothing.”

“Such as hauing wals and banks neere vnto the sea, and doo suffer the
same to decaie (after conuenient admonition) whereby the water entereth
and drowneth vp the countrie, are by a certeine custome apprehended,
condemned, and staken in the breach, where they remaine for euer as
parcell of the foundation of the new wall that is to be made vpon them,
as I haue heard reported.” This also is strange, showing that a machine
practically identical with the guillotine was in use in England centuries
before the re-invention of the machine by Dr. Guillotin:—

“There is and hath beene of ancient time a law or rather
a custome in Halifax, that who soeuer dooth commit anie
fellonie, and is taken with the same, or confesse the fact vpon
examination: if it be valued by foure constables to amount
to the sum of thirteene pence halfe penie, he is foorthwith
beheaded upon one of the next market daies.… The engine
wherewith the execution is doone, is a square block of wood
of the length of foure foote and an halfe, which dooth ride
vp and downe in a slot, rabet, or regall betweene two peeces
of timber, that are framed and set vpright of fiue yardes in
height. In the neather end of the sliding blocke is an ax keied
or fastened with an iron into the wood, which being drawne
vp to the top of the frame is there fastned by a wooden pin
(with a notch made into the same after the manner of a Samsons
post) vnto the middest of which pin also there is a long rope
fastened that commeth downe among the people, so that when the
offendor hath made his confession, and hath laid his necke ouer
the neathermost blocke, euerie man there present dooth either
take hold of the rope (or putteth foorth his arme so neere to
the same as he can get, in token that he is willing to see true
iustice executed) and pulling out the pin in this maner, the
head blocke wherein the ax is fastened dooth fall downe with
such a violence, that if the necke of the transgressor were so
big as that of a bull, it should be cut in sunder at a stroke,
and roll from the bodie by an huge distance. If it be so that
the offendor be apprehended for an ox, oxen, sheepe, kine,
horsse, or anie such cattell: the selfe beast or other of the
same kind shall haue the end of the rope tied somewhere vnto
them, so that they being driuen doo draw out the pin wherby the
offendor is executed.”[32]

Harrison says that “we have vse neither of the wheele nor of the barre,
as in other countries,” and these punishments are not to be found in the
chronicles.

A favourite story of the Middle Ages is that of the unjust judge,
Sisamnes, flayed alive by order of Cambyses. This punishment is one not
likely to have been overlooked. In the “Laws of Henry I.” (so called),
we find scalping and flaying mentioned as punishments (comacio and
excoriacio[33]). It is certain that the punishment was not absent from
men’s minds. In 1176, the secretary of the young king was discovered to
be in correspondence with Henry II. He was thought worthy of death; some
proposed that he should be hanged, others that he should be flayed alive
(vivum excoriari[34]). I have not found a written record of execution in
England by flaying alive, but there exists singular and terrible indirect
evidence of the infliction of the punishment in a very remarkable case.

In 1303 was successfully carried out a burglary which after six centuries
remains the greatest burglary on record, the amount involved being
£100,000, equal to £2,000,000 in money of the present day. The palace
of the king at Westminster was contiguous to the abbey. In the King’s
treasury were lodged at the time in question not only the regalia, but a
large sum of money destined to the carrying on of the war in Scotland.
Edward I. left Westminster on March 14th and travelled towards Scotland,
reaching Newcastle on May 6th. Shortly before this date the treasury was
broken into and its treasure carried off. The robbery being discovered,
forty-one friars and thirty-four monks were committed to the Tower. The
burglary had been skilfully planned. Early in the spring the cemetery—the
plot enclosed by the cloisters—was sown with hemp, so that the hemp
should grow high enough by the time fixed for the robbery to hide the
treasure. Mr. Joseph Burtt, who has told the story at length, came to the
conclusion that “the affair was evidently got up between William, the
sacrist of Westminster, Richard de Podlicote, a merchant, and the keeper
of the palace, with the aid of their immediate servants and friends.”[35]

Ten monks and one cleric were arraigned, but, refusing to be tried by
secular judges, were remanded to the Tower. But the judges “condemned the
sacrist of Westminster for receiving and concealing jewels of our lord
the king.” Strangely enough, there is no record of his sentence.[36] But
certain doors giving access to the treasury were found to be covered,
inside and outside, with skin. Sir Gilbert Scott submitted a piece to an
eminent microscopist, Mr. Quekett, who pronounced it to be human skin.
There has been vague talk of “the skins of Danes” in connection with the
lining of these doors, but Dean Stanley, who says that the skin is that
of “a fair-haired, ruddy-complexioned man,” is of opinion that there is
no period to which these fragments of skin can be so naturally referred
as to that of the burglary.[37]

Here is the record of a punishment, the only one of its kind I have found
recorded:—

“=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.