3.11. Of sundrie kinds of punishments appointed for
malefactors. Chap. 11.
Of sundrie kinds of punishments appointed for
malefactors. Chap. 11.
_IN cases of felonie, manslagh|ter, roberie, murther,
rape, piracie, & such capitall crimes as are
not reputed for treason or hurt of the estate, our
sen|tence pronounced vpon the offendor is to hang till
he be dead. For of other punish|ments vsed in other
countries we haue no know|ledge or vse, and yet so few
gréeuous crimes commit|ted with vs as else where in
the world. To vse tor|ment also or question by paine
and torture in these common cases with vs is greatlie
abhorred, sith we are found alwaie to be such as
despise death, and yet abhorre to be tormented,
choosing rather frankelie to open our minds than to
yeeld our bodies vnto such seruile halings and
tearings as are vsed in other countries. And this is
one cause wherefore our con|demned persons doo go so
chéerefullie to their deths, for our nation is frée,
stout, hautie, prodigall of life and bloud, as six
Thomas Smith saith lib. 2. cap. 25. de
republica, and therefore cannot in anie wise
digest to be vsed as villanes and slaues, in suffering
continu|allie beating, seruitude, and seruile
torments. No, our gailers are guiltie of fellonie by
an old law of the land, if they torment anie prisoner
committed to their custodie for the reuealing of his
complices.
Compare 1577 edition:
1 The greatest and most gréeuous punishment vsed in
England, for such as offend against the state, is
drawing from the prison to the place of execution
vp|on an hardle or sled, where they are hanged till
they be halfe dead, and then taken downe and quartered
aliue, after that their members and bowels are cut
from their bodies, and throwne into a fire prouided
neere hand and within their owne sight, euen for the
same purpose. Sometimes, if the trespasse be not the
more hainous, they are suffered to hang till they be
quite dead. And when soeuer anie of the nobilitie are
conuicted of high treason by their peeres, that is to
saie, equals (for an inquest of yeomen passeth not
vp|on them, but onelie of the lords of the parlement)
this maner of their death is conuerted into the losse
of their heads onelie, notwithstanding that the
sen|tence doo run after the former order. In triall of
cases concerning treason, fellonie, or anie other
greeuous crime not confessed, the partie accused dooth
yéeld, if he be a noble man, to be tried by an inquest
(as I haue said) and his péeres: if a gentleman, by
gen|tlemen: and an inferiour, by God and by the
coun|trie, to wit, the yeomanrie (for combat or
battell is not greatlie in vse) and being condemned of
fellonie, manslaughter, &c: he is eftsoons
hanged by the necke till he be dead, and then cut
downe and buried. But if he be conuicted of wilfull
murther, doone either vp|on pretended malice, or in
anie notable robberie, he is either hanged aliue in
chaines néere the place where the fact was committed
(or else vpon compas|sion taken first strangled with a
rope) and so conti|nueth till his bones consume to
nothing. We haue vse neither of the whéele nor of the
barre, as in other countries; but when wilfull
manslaughter is perpe|trated, beside hanging, the
offendor hath his right hand commonlie striken off
before or néere vnto the place where the act was
doone, after which he is led foorth to the place of
execution, and there put to death according to the
law.
Compare 1577 edition:
1 The word fellon is deriued of the Saxon words
Fell and One, that is to say, an
euill and wicked one, EEBO page image 185 a one of
vntamable nature, and lewdnesse not to be suffered for
feare of euill example and the corruption of others.
In like sort in the word fellonie are manie gréeuous
crimes conteined, as breach of prison An. 1
of Edward the second. Dissigurers of the princes liege
people An. 5. of Henrie the fourth. Hunting
by night with painted faces and visors An. 1.
of Henrie the seuenth. Rape or stealing of women
& maidens An. 3. of Henrie the eight.
Conspiracie against the person of the prince
An. 3. of Henrie the seuenth. Embesilling of goods committed by the
master to the seruant, aboue the value of fourtie
shillings An. 17. of Henrie the eight.
Carieng of horsses or mares into Scotland An.
23. of Henrie the eight. Sodomie and buggerie
An. 25. of Henrie the eight. Stealing of
hawkes egs An. 31. of Henrie the eight.
Coniu|ring, sorcerie, witchcraft, and digging vp of
crosses An. 33. of Hen. 8. Prophesieng vpon
armes, cognisan|ces, names & badges
An. 33. of Hen. 8. Casting of slanderous bils
An. 37. Hen. 8. Wilfull killing
by poison An. 1. of Edw.
the sixt. Departure of a soldier from the field
An. 2. of Edward the sixt. Diminution of
coine, all offenses within case of premunire,
em|beselling of records, goods taken from dead men by
their seruants, stealing of what soeuer cattell,
rob|bing by the high waie, vpon the sea, or of
dwelling houses, letting out of ponds, cutting of
pursses, stea|ling of déere by night, counterfeitors
of coine, eui|dences, charters, and writings,
& diuerse other need|lesse to be remembred. If
a woman poison hir hus|band she is
burned aliue, if the seruant kill his ma|ster he is to
be executed for petie treason, he that poi|soneth a
man is to be boiled to death in water or lead,
although the partie die not of the practise: in cases
of murther all the accessaries are to suffer paines of
death accordinglie. Periurie is punished by the
pillorie, burning in the forehead with the let|ter
P, the rewalting of the trées growing vpon
the grounds of the offendors and losse of all his
mooue|ables. Manie trespasses also are punished by the
cut|ting of one or both cares
from the head of the offen|dor, as the vtterance of
seditious words against the magistrates, fraimakers,
petie robbers, &c. Roges are burned through
the eares, cariers of sheepe out of the land by the
losse of their hands, such as kill by poison are
either boiled or skalded to death in lead or séething
water. Heretikes are burned quicke, har|lots and their
mates by carting, ducking, and dooing of open penance
in shéets, in churches and market stéeds are often put
to rebuke. Howbeit as this is
counted with some either as no punishment at all to
speake of, or but smallie regarded of the offendors,
so I would wish adulterie and fornication to haue some
sharper law. For what great smart is it to be turned
out of an hot shéet into a cold, or after a little
washing in the water to be let lose againe vnto their
former trades? Howbeit the dragging of some of them
ouer the Thames betwéene Lambeth and Westminster at
the taile of a boat, is a punishment that most
terrifieth them which are condemned ther|to; but this is inflicted vpon them by none
other than the knight marshall, and that within the
compasse of his iurisdiction & limits onelie.
Canutus was the first that gaue authoritie
to the cleargie to punish whore|dome, who at that time
found fault with the former lawes as being too seuere
in this behalfe. For before the time of the said
Canutus, the adulterer forfeited all his
goods to the king, and his bodie to be at his
pleasure; and the adulteresse was to lose hir eies or
nose, or both, if the case were more than common:
whereby it appéereth of what estimation mariage was
amongst them, sith the breakers of that holie estate
were so gréeuouslie rewarded. But afterward the
cleargie dealt more fauourablie with them, shoo|ting
rather at the punishments of such priests and clearkes
as were maried, than the reformation of adulterie and
fornication, wherein you shall find no example that
anie seueritie was shewed, except vpon such laie men
as had defiled their nuns. As in theft therfore so in
adulterie and whoredome I would wish the parties
trespassant, to be made bond or slaues vnto those that
receiued the iniurie, to sell and giue where they
listed, or to be condemned to the gal|lies: for that
punishment would proue more bitter to them than halfe
an houres hanging, or than stand|ing in a shéet,
though the weather be neuer so cold.
Manslaughter in time past was punished by the pursse,
wherin the quantitie or qualitie of the punish|ment
was rated after the state and calling of the partie
killed: so that one was valued sometime at 1200,
another at 600, or 200 shillings. And by an e|statute
made vnder Henrie the first, a citizen of London at
100, whereof else-where I haue spoken more at large.
Such as kill themselues are buried in the field with a
stake driuen through their bodies.
Compare 1577 edition:
1 Witches are hanged or sometimes burned, but théeues
are hanged (as I said before) generallie on the gibbet
or gallowes, sauing in Halifax where they are beheaded
after a strange maner, and whereof I find this
report.Halifax law. There
is and hath beene of ancient time a law or rather a
custome at 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 thirtéene pence
halfe penie, he is foorthwith behea|ded vpon one of
the next market daies (which fall v|suallie vpon the
tuesdaies, thursdaies, & saturdaies) or else
vpon the same daie that he is so conuicted, if market
be then holden. The engine wherewith the execution is
doone, is a square blocke of wood of the length of
foure foot and an halfe, which dooth ride vp and downe
in a slot, rabet, or regall betwéene two péeces of
timber, that are framed and set vpright of fiue yardes
in height. In the neather end of the sli|ding 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 woodden pin (with a notch made into the
same after the maner 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 con|fession, 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 sée true iustice
executed) and pulling out the pin in this maner, the
head blocke wherein the ax is faste|ned 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, shéepe, kine, horsse, or
anie such cattell: the selfe beast or o|ther 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. Thus
much of Halifax law, which I set downe onelie to shew
the custome of that countrie in this behalfe.
Compare 1577 edition:
1 Roges and vagabonds are often stocked and whip|ped,
scolds are ducked vpon cuckingstooles in the water.
Such fellons as stand mute and speake not at their
arraignement are pressed to death by huge weights laid
vpon a boord,Mute. that
lieth ouer their brest, and a sharpe stone vnder their
backs, and these com|monlie hold their peace, thereby
to saue their goods vnto their wiues and children,
which if they were con|demned should be confiscated to
the prince. Théeues that are saued by their bookes and
cleargie,Cleargie. for the
first EEBO page image 186 offense, if they haue
stollen nothing else but oxen, sheepe, monie, or such
like, which be no open robberies, as by the high waie
side, or assailing of anie mans house in the night,
without putting him in feare of his life, or breaking
vp of his wals or doores, are bur|ned in the left
hand, vpon the brawne of the thombe with an hot iron,
so that if they be apprehended a|gaine, that marke
bewraieth them to haue beene ar|raigned of fellonie
before, whereby they are sure at that time to haue no
mercie. I doo not read that this
custome of sauing by the booke is vsed anie where else
than in England, neither doo I find (after much
diligent inquirie) what Saxon prince ordeined that
lawe. Howbeit, this I generallie gather thereof, that
it was deuised to traine the inhabiters of this land
to the loue of learning, which before contem|ned
letters and all good knowledge, as men onelie giuing
themselues to husbandrie and the warres, the like
whereof I read to haue beene amongst the Gothes and
Uandals, who for a time would not suf|fer euen their princes to be lerned for
weakening of their courages, nor anie learned men to
remaine in the counsell house, but by open
proclamation would command them to auoid, whensoeuer
anie thing touching the state of the land was to be
consulted vpon.Pirats.
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
ouer washed them. Finallie, such as ha|uing wals and
banks néere vnto the sea, and doo suf|fer the same to decaie (after conuenient
admonition) whereby the water entereth and drowneth vp
the countrie, are by a certeine ancient custome
appre|hended, condemned, and staked 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.
And thus much in part of the administration of
instice vsed in our countrie, wherein notwithstand|ing
that we doo not often heare of horrible,
merciles, and wilfull murthers
(such I meane asiare not sil|dome séene in the
countries of the maine) yet now and then some
manslaughter and bloudie robberies are perpetrated and
committed, contrarie to the lawes, which be seuerelie
punished, and in such wise as I before reported.
Certes there is no greater mischéefe doone in England
than by robberies, the first by yoong shifting
gentlemen, which oftentimes doo beare more port than
they are able to mainteine. Secondlie by seruingmen,
whose wages cannot suf|fice so much
as to find them bréeches, wherefore they are now and
then constreined either to kéepe high waies, and
breake into the wealthie mens houses with the first
sort, or else to walke vp and downe in gentlemens and
rich farmers pastures, there to sée and view which
horsses féed best, whereby they manie times get
something, although with hard aduenture it hath béene
knowne by their confession at the gal|lowes, that some
one such chapman hath had fortie,
fiftie, or sixtie stolne horsses at pasture here and
there abroad in the countrie at a time, which they
haue sold at faires and markets farre off, they
themselues in the meane season being taken about home
for honest yeomen, and verie wealthie drouers, till
their dea|lings haue been bewrated. It is not long
since one of this companie was apprehended, who was
before time reputed for a verie honest and wealthie
townes|man, he vttered also more horsses than anie of
his trade, because he sold a reasonable peniworth, and
was a faire spoken man. It was his custome like|wise
to saie, if anie man hucked hard with him a|bout the
price of a gelding; So God helpe me gen|tleman or sir,
either he did cost me so much, or else by Iesus I
stole him. Which talke was plaine inough, and yet such
was his estimation, that each beleeued the first part
of his tale, and made no account of the later, which
was the truer indeed.
Our third annoiers of the common-wealth are roges,
which doo verie great mischeefe in all places where
they become. For wheras the rich onelie suffer iniurie
by the fir [...]t two, these spare neither rich nor
poore: but whether it be great gaine or small, all is
fish that commeth to net with them, and yet I saie
both they and the rest are trussed vp apace. For there
is not one yeare commonlie, wherein three hundred or
foure [...] of them are not deuoured and ea|ten vp
by the gallowes in one place and other. It ap|peareth
by Cardane (who writeth it vpon the report of
the bishop of Lexouia) in the geniture of king Edward
the sixt, how Henrie the eight, executing his laws
verie seuerelie against such idle persons, I meane
great theeues, pettie théeues and roges, did hang vp
thréescore and twelue thousand of them in his time. He
seemed for a while greatlie to haue terrified the
rest: but since his death the number of them is so
increased, yea although we haue had no warres, which
are a great occasion of their breed (for it is the
custome of the more idle sort, hauing once serued or
but séene the other side of the sea vnder co|lour of
seruice to shake hand with labour, for euer, thinking
it a disgrace for himselfe to returne vnto his former
trade) that except some better order be ta|ken, or the
lawes alreadie made be better executed, such as dwell
in vplandish townes and little villa|ges shall liue
but in small safetie and rest. For the better
apprehension also of theeues and mankillers, there is
an old law in England verie well prouided, whereby it
is ordered, that if he that is robbed, or any man
complaine and giue warning of slaughter or murther
committed, the constable of the village wherevnto he
commeth and crieth for succour, is to raise the parish
about him, and to search woods, groues, and all
suspected houses and places, where the trespasser may
be, or is supposed to lurke; and not finding him
there, he is to giue warning vnto the next constable,
and so one constable after serch made to aduertise
another from parish to parish, till they come to the
same where the offendor is harbored and found. It is
also prouided, that if anie parish in this businesse
doo not hir dutie, but suffereth the théefe (for the
auoiding of trouble sake) in carrieng him to the
gaile; if he should be apprehended, or other letting
of their worke, to escape the same parish, is not
on|lie to make fine to the king, but also the same
with the whole hundred wherein it standeth, to repaie
the partie robbed his damages, and leaue his estate
harmlesse. Certes this is a good law, howbeit I haue
knowne by mine owne experience, fellons being taken to
haue escaped out of the stocks, being rescu|ed by
other for want of watch & gard, that théeues
haue beene let passe, bicause the couetous and greedie
parishoners would neither take the paines, nor be at
the charge to carrie them to prison, if it were far
off, that when hue and crie haue béene made euen to
the faces of some constables, they haue said; God
re|store your losse, I haue other businesse at this
time. And by such meanes the meaning of manie a good
law is left vnexecuted, malefactors imboldened, and
manie a poore man turned out of that which he hath
swet and taken great paines for, toward the
maintenance of himselfe and his poore children and
familie.
