Chapter 3

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.”

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:—

“At the same Sessions, George Thorely, being indicted for
Robbery, refused to plead, and his two Thumbs were tyed
together with Whipcord, that the pain of that might compel
him to Plead, and he was sent away so tyed, and a Minister
perswaded to go to him to perswade him: And an Hour after he
was brought again and pleaded. And this was said to be the
constant practice at Newgate.”[64]

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:—

“The bulls which by the practice of you and your Catiline, the
lively image of your heart, should by loud lowing, have called
all his calves together with a preparation to band against our
sovereign, at the first break of day, and to have cropped those
sweet olive-buds that environ the regal seat, did more good
than hurt, as it happened, by calling in a third bull, which
was Bull the hangman, to make a speedy riddance and dispatch of
this forlorn fellowship.”[66]

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:—

=January, 1617.= “York Herald played a trick on Garter
King-at-Arms, by sending him a coat of arms drawn up for
Gregory Brandon, said to be a merchant of London, and
well-descended, which Garter subscribed, and then found that
Brandon was the hangman; Garter and York are both imprisoned,
one for foolery, the other for knavery.”[68]

Gregory was succeeded by his son Richard, famous as the executioner of
Charles I.

After him came Lowen, an obscure hangman, known only by mention in the
account of an execution.[69]

Later came Edward Dun, known as “Esquire Dun,” mentioned in Butler’s
“Hudibras” (pt. iii. c. ii. l. 1534). He was followed by the most famous
of all the hangmen of Tyburn, Jack Ketch, hangman from about 1663 to
1686. In January of this year he was for a time superseded by Pascha
Rose, a butcher, who was hanged at Tyburn, on May 28th, when Ketch
resumed office. Ketch is twice mentioned in Dryden, in the epilogue to
the Duke of Guise:—

“Jack Ketch, says I’s, an excellent physician,”

and again in “The Original and Progress of Satire”:—

“A man may be capable, as Jack Ketch’s wife said of his
servant, of a plain piece of work, a bare hanging: but to make
a malefactor die sweetly, was only belonging to her husband.”

Dr. Murray’s Dictionary attributes something of Ketch’s fame to his
introduction into the “puppet-play of Punchinello introduced from Italy
shortly after his death”: but Cunningham quotes from the Overseers’
Books of St. Martin’s-in-the-Fields entries of sums “received of
Punchinello the Italian popet player, for his Booth at Charing-cross,”
in March, 1666. But something of his notoriety was due to his bungling
in the executions of Lord Russell in 1683, and of the Duke of Monmouth
in 1685. As to Lord Russell, “Ketch the executioner severed his head
from his body at three strokes, very barbarously.”[70] It was worse with
Monmouth:—

“He sayd to the executioner, ‘Here are six guinies for you.
Pray doe your business well: don’t serue me as you did my Lord
Russell. I haue heard you strooke him three or fower tymes.
Here (to his seruant), take these remaininge guinies, and giue
them to him if he does his worke well.’ And to the executioner
he sayd, ‘If you strike me twice I cannot promise you not to
stirr.’ Then he lay downe, and soone after raised himselfe vpon
his elbowe, and sayd to the executioner, ‘Prithee, let me feele
the ax.’ He felt the edge, and sayd, ‘I feare it is not sharpe
enough.’ Then he lay downe, the Diuines prayinge earnestly for
the acceptance of his repentance, his imperfect repentance, and
commended to God his soule and spirit. Soe the executioner did
his work: but I heare he had fiue blowes. Soe he died.”[71]

As recorded in the Annals, John Price, the Tyburn hangman, was executed
in Bunhill-Fields for murder in 1718.

In August, 1721, John Meff was executed at Tyburn. At a previous date,
not mentioned, he had been condemned to death for housebreaking, but, as
he was going to Tyburn, the hangman, bearing the generic name of “Jack
Ketch,” was arrested. What became of him is not told, but he probably
came to a bad end.

In May, 1736, “Jack Ketch,” on his return from doing his office at
Tyburn, robbed a woman of 3s. 6d., for which he was committed to Newgate.
History is silent as to his fate.

In 1750, the hangman, John Thrift, was condemned for killing a man in a
quarrel. His sentence was commuted to one of transportation for fourteen
years. He was finally pardoned, and in September “resumed the exercise
of his office.” “‘Old England,’ September 22, hints, that having become
obnoxious to the Jacobites, for his celebrated operations on Tower-Hill
and Kennington-Common, he was pardoned _in terrorem_, and to mortify
them.”[72]

In 1780, Edward Dennis, the hangman, was condemned for taking part in
the No Popery riots. He was respited. Dickens has introduced Dennis as a
personage in his story of “Barnaby Rudge.”

It will be seen that out of the few hangmen of Tyburn whose names have
come down to us, several ended their useful lives on the gallows, having
failed to profit personally by the lessons they were employed by the
State to teach.

There was a strange superstition connected with the gallows: what it was
will be understood from the following:—

A man having been hanged at Tyburn, on May 4, 1767, “a young
woman, with a wen upon her neck, was lifted up while he was
hanging, and had the wen rubbed with the dead man’s hand, from
a superstitious notion that it would effect a cure.”

This case is not the only one of its kind on record.[73]

Tyburn is responsible for a few slang expressions. “A Tyburn ticket” was
a certificate exempting from parish duties the successful prosecutor of a
malefactor. “A Tyburn blossom” was a young pickpocket. “A Tyburn check”
was a rope. “A Tyburn tippet” was a halter. Latimer did not disdain to
use this word in his great sermons.

The gallows was known as “Deadly Never-green,” the “Three-legged Mare,”
the “Three-legged Stool.”

AFTER TYBURN.

What became of the bodies of those done to death at Tyburn? Some were
quartered, parboiled, and stuck up on the gates of the city or elsewhere,
as the king might direct. These would be but few out of the great total.
For two centuries there was regular provision for the decent burial of
executed persons, in the circumstances mentioned by Stow.

Stow tells how, in 1348, Ralph Stratford, Bishop of London, bought a
piece of ground, called “No Man’s Land,” which he enclosed with a wall of
brick, and dedicated for burial of the dead: this was Pardon churchyard.
In the following year Sir Walter Manny bought thirteen acres of land
adjoining, and here were buried more than fifty thousand persons who died
of the frightful pestilence then raging, known as the Black Death. In
1371 Sir Walter founded here the Charterhouse, giving to the monastery
the thirteen acres, and also the three acres adjoining, which “remained
till our time by the name of Pardon churchyard, and served for burying
of such as desperately ended their lives, or were executed for felonies,
who were fetched thither usually in a close cart, bailed over and covered
with black, having a plain white cross thwarting, and at the fore end a
St. John’s cross without, and within a bell ringing by shaking of the
cart, whereby the same might be heard when it passed: and this was called
the friary cart, which belonged to St. John’s, and had the privilege of
sanctuary.”[74]

“It remained till our time,” says Stow, and this is one of those passages
telling what Stow had seen—passages that give so vivid an interest to his
story of London.

In the Grey Friars’ Chronicle we find an instance of the burial in Pardon
churchyard of persons executed at Tyburn:—

“=1537.= Also this yere the xxv day of Marche the Lyncolnechere
men that was with bishoppe Makerelle was browte owte of Newgate
vn-to the yelde-halle [Guildhall] in roppys, and there had
their jugment to be drawne, hongyd, and heddyd, and qwarterd,
and soo was the xxix of Marche after, the wyche was on Maundy
Thursdaye, and alle their qwarteres with their heddes was
burryd at Pardone churche-yerde in the frary.”[75]

From Stow’s account of the execution, quoted in the Annals, we learn that
the number of Lincolnshire men executed on this occasion was twelve.

The priory of St. John’s was dissolved in 1540, and with it went the
friary cart.

After this, and also before the suppression of the friary cart, bodies
were brought back by friends for interment in the parish churchyard. Here
is a case in which a body so brought back was refused burial:—

One Awfield had been condemned and executed at Tyburn for “sparcing
abrood certen lewed, sedicious, and traytorous bookes. His body was
brought into St. Pulchers to be buryed, but the parishioners would not
suffer a Traytor’s corpes to be layed in the earthe where theire parents,
wyeffs, chyldren, kynred, maisters, and old neighbors did rest: and so
his carcase was retourned to the buryall grounde neere Tyborne, and there
I leave yt.”[76]

But many of the poor wretches hanged had no friends who would be at the
charge of interment. The demands of the surgeons would be soon satisfied;
with how little ceremony the residue would be treated we may learn from
the narrative of Richardson, given in the Annals (1741).

We read of two priests and sixteen felons executed at the same time, in
1610, being all thrown together into a pit. The stories of bones found in
the neighbourhood of the gallows may probably be referred to forgotten
burial places or to pits into which, after a busy day’s work, a score of
bodies would be tumbled.[77]

Strype, in his edition of Stow’s “Survey,” has a weird story of the
finding of four embalmed heads in Blackfriars, in clearing away rubbish
after the Great Fire of 1666:—

“They came to an old Wall in a Cellar, of great thickness,
where appeared a kind of Cupboard.