CHAPTER XVII OF SUNDRY KINDS OF PUNISHMENT APPOINTED FOR OFFENDERS
［1577, Book III., Chapter 6; 1587, Book II., Chapter II.］
IN cases of felony, manslaughter, robbery, murder, rape, piracy, and such capital crimes as are not reputed for treason or hurt of the estate, our sentence pronounced upon the offender is, to hang till he be dead. For of other punishments used in other countries we have no knowledge or use; and yet so few grievous crimes committed with us as elsewhere in the world. To use torment also or question by pain and torture in these common cases with us is greatly abhorred, since we are found always to be such as despise death, and yet abhor to be tormented, choosing rather frankly to open our minds than to yield our bodies unto such servile haulings and tearings as are used in other countries. And this is one cause wherefore our condemned persons do go so cheerfully to their deaths; for our nation is free, stout, haughty, prodigal of life and blood, as Sir Thomas Smith saith, lib. 2, cap. 25, De Republica, and therefore cannot in any wise digest to be used as villains and slaves, in suffering continually beating, servitude, and servile torments. No, our gaolers are guilty of felony, by an old law of the land, if they torment any prisoner committed to their custody for the revealing of his accomplices.
The greatest and most grievous punishment used in England for such as offend against the State is drawing from the prison to the place of execution upon an hurdle or sled, where they are hanged till they be half dead, and then taken down, and quartered alive; after that, their members and bowels are cut from their bodies, and thrown into a fire, provided near hand and within their own sight, even for the same purpose.
Sometimes, if the trespass be not the more heinous, they are suffered to hang till they be quite dead. And whensoever any of the nobility are convicted of high treason by their peers, that is to say, equals (for an inquest of yeomen passeth not upon them, but only of the lords of parliament), this manner of their death is converted into the loss of their heads only, notwithstanding that the sentence do run after the former order. In trial of cases concerning treason, felony, or any other grievous crime not confessed, the party accused doth yield, if he be a noble man, to be tried by an inquest (as I have said) and his peers; if a gentleman, by gentlemen; and an inferior, by God and by the country, to wit, the yeomanry (for combat or battle is not greatly in use), and, being condemned of felony, manslaughter, etc., he is eftsoons hanged by the neck till he be dead, and then cut down and buried. But if he be convicted of wilful murder, done either upon pretended malice or in any notable robbery, he is either hanged alive in chains near the place where the fact was committed (or else upon compassion taken, first strangled with a rope), and so continueth till his bones consume to nothing. We have use neither of the wheel nor of the bar, as in other countries; but, when wilful manslaughter is perpetrated, beside hanging, the offender hath his right hand commonly stricken off before or near unto the place where the act was done, after which he is led forth to the place of execution, and there put to death according to the law.
The word felon is derived of the Saxon words fell and one, that is to say, an evil and wicked one, a one of untameable nature and lewdness not to be suffered for fear of evil example and the corruption of others. In like sort in the word felony are many grievous crimes contained, as breach of prison (Ann. 1 of Edward the Second), disfigurers of the prince's liege people (Ann. 5 of Henry the Fourth), hunting by night with painted faces and visors (Ann. 1 of Henry the Seventh), rape, or stealing of women and maidens (Ann. 3 of Henry Eight), conspiracies against the persin of the prince (Ann. 3 of Henry the Seventh), embezzling of goods committed by the master to the servant above the value of forty shillings (Ann. 17 of Henry the Eighth), carrying of horses or mares into Scotland (Ann. 23 of Henry Eight), sodomy and buggery (Ann. 25 of Henry the Eighth), conjuring, forgery, witchcraft, and digging up of crosses (Ann. 33 of Henry Eight), prophesying upon arms, cognisances, names, and badges (Ann. 33 of Henry Eight), casting of slanderous bills (Ann. 37, Henry Eight), wilful killing by poison (Ann 1 of Edward the Sixth), departure of a soldier from the field (Ann. 2 of Edward the Sixth), diminution of coin, all offences within case of premunire, embezzling of records, goods taken from dead men by their servants, stealing of whatsoever cattle, robbing by the high way, upon the sea, or of dwelling houses, letting out of ponds, cutting of purses, stealing of deer by night, counterfeits of coin, evidences charters, and writings, and divers other needless to be remembered. If a woman poision her husband, she is burned alive; if the servant kill his master, he is to be executed for petty treason; he that poisoneth a man is to be boiled to death in water or lead, although the party die not of the practice; in cases of murder, all the accessories are to suffer pains of death accordingly. Perjury is punished by the pillory, burning in the forehead with the letter P, the rewalting of the trees growing upon the grounds of the offenders, and loss of all his movables. Many trespasses also are punished by the cutting off of one or both ears from the head of the offender, as the utterance of seditious words against the magistrates, fraymakers, petty robbers, etc. Rogues are burned through the ears; carriers of sheep out of the land, by the loss of their hands; such as kill by poison are either boiled or scalded to death in lead or seething water. Heretics are burned quick; harlots and their mates, by carting, ducking, and doing of open penance in sheets in churches and market steeds, are often put to rebuke. Howbeit, as this is counted with some either as no punishment at all to speak of, or but little regarded of the offenders, so I would with adultery and fornication to have some sharper law. For what great smart is it to be turned out of hot sheet into a cold, or after a little washing in the water to be let loose again unto their former trades? Howbeit the dragging of some of them over the Thames between Lambeth and Westminster at the tail of a boat is a punishment that most terrifieth them which are condemned thereto; but this is inflicted upon them by none other than the knight marshall, and that within the compass of his jurisdiction and limits only. Canutus was the first that gave authority to the clergy to punish whoredom, who at that time found fault with the former laws as being too severe in this behalf. For, before the time of the said Canutus, the adulterer forfeited all his goods to the king and his body to be at his pleasure; and the adulteress was to lose her eyes or nose, or both if the case were more than common: whereby it appears of what estimation marriage was amongst them, since the breakers of that holy estate were so grievously rewarded. But afterward the clergy dealt more favourably with them, shooting rather at the punishments of such priests and clerks as were married than the reformation of adultery and fornication, wherein you shall find no example that any severity was shewed except upon such lay men as had defiled their nuns. As in theft therefore, so in adultery and whoredom, I would wish the parties trespassing to be made bond or slaves unto those that received the injury, to sell and give where they listed, or to be condemned to the galleys: for that punishment would prove more bitter to them than half-an-hour's hanging, or than standing in a sheet, though the weather be never so cold.
Manslaughter in time past was punishment by the purse, wherein the quantity or quality of the punishment was rated after the state and calling of the party killed: so that one was valued sometime at 1200, another at 600, or 200 shillings. And by a statute made under Henry the First, a citizen of London at 100, whereof elsewhere I have spoken more at large. Such as kill themselves are buried in the field with a stake driven through their bodies.
Witches are hanged, or sometimes burned; but thieves are hanged (as I said before) generally on the gibbet or gallows, saving in Halifax, where they are beheaded after a strange manner, and whereof I find this report. There is and has been of ancient time a law, or rather a custom, at Halifax, that whosoever does commit any felony, and is taken with the same, or confesses the fact upon examination, if it be valued by four constables to amount to the sum of thirteen-pence-halfpenny, he is forthwith beheaded upon one of the next market days (which fall usually upon the Tuesdays, Thursdays, and Saturdays), or else upon the same day that he is so convicted, if market be then holden. The engine wherewith the execution is done is a square block of wood of the length of four feet and a half, which does ride up and down in a slot, rabbet, or regall, between two pieces of timber, that are framed and set upright, of five yards in height. In the nether end of the sliding block is an axe, keyed or fastened with an iron into the wood, which being drawn up to the top of the frame is there fastened by a wooden pin (with a notch made into the same, after the manner of a Samson's post), unto the midst of which pin also there is a long rope fastened that cometh down among the people, so that, when the offender hath made his confession nd hath laid his neck over the nethermost block, every man there present doth either take hold of the rope (or putteth forth his arm so near to the same as he can get, in token that he is willing to see true justice executed), and, pulling out the pin in this manner, the head-block wherein the axe is fastened doth fall down with such a violence that, if the neck of the transgressor were as big as that of a bull, it should be cut in sunder at a stroke and roll from the body by a huge distance. If it be so that the offender be apprehended for an ox, oxen, sheep, kine, horse, or any such cattle, the self beast or other of the same kind shall have the end of the rope tied somewhere unto them, so that they, being driven, do draw out the pin, whereby the offender is executed. Thus much of Halifax law, which I set down only to shew the custom of that country in this behalf.
Rogues and vagabonds are often stocked and whipped; scolds are ducked upon cucking-stools in the water. Such felons as stand mute, and speak not at their arraignment, are pressed to death by huge weights laid upon a board, that lieth over their breast, and a sharp stone under their backs; and these commonly held their peace, thereby to save their goods unto their wives and children, which, if they were condemned, should be confiscated to the prince. Thieves that are saved by their books and clergy, for the first offence, if they have stolen nothing else but oxen, sheep, money, or such like, which be no open robberies, as by the highway side, or assailing of any man's house in the night, without putting him in fear of his life, or breaking up his walls or doors, are burned in the left hand, upon the brawn of the thumb, with a hot iron, so that, if they be apprehended again, that mark betrayeth them to have been arraigned of felony before, whereby they are sure at that time to have no mercy. I do not read that this custom of saving by the book is used anywhere else than in England; neither do I find (after much diligent enquiry) what Saxon prince ordained that law. Howbeit this I generally gather thereof, that it was devised to train the inhabitants of this land to the love of learning, which before contemned letters and all good knowledge, as men only giving themselves to husbandry and the wars: the like whereof I read to have been amongst the Goths and Vandals, who for a time would not suffer even their princes to be learned, for weakening of their courage, nor any learned men to remain in the council house, but by open proclamation would command them to avoid whensoever anything touching the state of the land was to be consulted upon. Pirates and robbers by sea are condemned in the Court of the Admiralty, and hanged on the shore at low-water mark, where they are left till three tides have overwashed them. Finally, such as having walls and banks near unto the sea, and do suffer the same to decay (after convenient admonition), whereby the water entereth and drowneth up the country, are by a certain ancient custom apprehended, condemned, and staked in the breach, where they remain for ever as parcel of the foundation of the new wall that is to be made upon them, as I have heard reported.
And thus much in part of the administration of justice used in our country, wherein, notwithstanding that we do not often hear of horrible, merciless, and wilful murders (such I mean as are not seldom seen in the countries of the main), yet now and then some manslaughter and bloody robberies are perpetrated and committed, contrary to the laws, which be severely punished, and in such wise as I have before reported. Certes there is no greater mischief done in England than by robberies, the first by young shifting gentlemen, which oftentimes do bear more port than they are able to maintain. Secondly by serving-men, whose wages cannot suffice so much as to find them breeches; wherefore they are now and then constrained either to keep highways, and break into the wealthy men's houses with the first sort, or else to walk up and down in gentlemen's and rich farmers' pastures, there to see and view which horses feed best, whereby they many times get something, although with hard adventure: it hath been known by their confession at the gallows that some one such chapman hath had forty, fifty, or sixty stolen horses at pasture here and there abroad in the country at a time, which they have sold at fairs and markets far off, they themselves in the mean season being taken about home for honest yeomen, and very wealthy drovers, till their dealings have been betrayed. It is not long since one of this company was apprehended, who was before time reputed for a very honest and wealthy townsman; he uttered also more horses than any of his trade, because he sold a reasonable pennyworth and was a fairspoken man. It was his custom likewise to say, if any man hucked hard with him about the price of a gelding, “So God help me, gentlemen (or sir), either he did cost me so much, or else, by Jesus, I stole him!” Which talk was plain enough; and yet such was his estimation that each believed the first part of his tale, and made no account of the latter, which was truer indeed.
Our third annoyers of the commonwealth are rogues, which do very great mischief in all places where they become. For, whereas the rich only suffer injury by the first two, these spare neither rich nor poor; but, whether it be great gain or small, all is fish that cometh to net with them. And yet, I say, both they and the rest are trussed up apace. For there is not one year commonly wherein three hundred or four hundred of them are not devoured and eaten up by the gallows in one place and other. It appeareth by Cardan (who writeth it upon the report of the bishop of Lexovia), in the geniture of King Edward the Sixth, how Henry the Eighth, executing his laws very severely against such idle persons, I mean great thieves, petty thieves, and rogues, did hang up threescore and twelve thousand of them in his time. He seemed for a while greatly to have terrified the rest; but since his death the number of them is so increased, yea, although we have had no wars, which are a great occasion of their breed (for it is the custom of the more idle sort, having once served, or but seen the other side of the sea under colour of service, to shake hands with labour for ever, thinking it a disgrace for himself to return unto his former trade), that, except some better order be taken, or the laws already made be better executed, such as dwell in uplandish towns and little villages shall live but in small safety and rest. For the better apprehension also of thieves and mankillers, there is an old law in England very well provided whereby it is ordered that, if he that is robbed (or any man) complain and give warning of slaughter or murder committed, the constable of the village whereunto he cometh and crieth for succour is to raise the parish about him, and to search woods, groves, and all suspected houses and places, where the trespasser may be, or is supposed to lurk; and not finding him there, he is to give warning unto the next constable, and so one constable, after search made, to advertise another from parish to parish, till they come to the same where the offender is harboured and found. It is also provided that, if any parish in this business do not her duty, but suffereth the thief (for the avoiding of trouble sake) in carrying him to the gaol, if he should be apprehended, or other letting of their work to escape, the same parish is not only to make fine to the king, but also the same, with the whole hundred wherein it standeth, to repay the party robbed his damages, and leave his estate harmless. Certainly this is a good law; howbeit I have known by my own experience felons being taken to have escaped out of the stocks, being rescued by other for want of watch and guard, that thieves have been let pass, because the covetous and greedy parishioners would neither take the pains nor be at the charge, to carry them to prison, if it were far off; that when hue and cry have been made even to the faces of some constables, they have said: “God restore your loss! I have other business at this time.” And by such means the meaning of many a good law is left unexecuted, malefactors emboldened, and many a poor man turned out of that which he hath sweat and taken great pains toward the maintenance of himself and his poor children and family.