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.