Penalty for Silence
September 16, 2014
A Description of
Elizabethan England.
Vol. 35, pp. 363-370 of
The Harvard Classics
"Such felons as
stand mute [do not confess] are pressed to death by huge weights laid
upon a board that lieth over their breast and a sharp stone under
their backs." Old English punishments, recorded by Holinshed,
make startling reading.
Chapter
XVII
Of
Sundry Kinds of Punishment Appointed for Offenders
[1577,
Book III., Chapter 6; 1587, Book II., Chapter 2.]
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 and 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.
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