Page:Notes and Queries - Series 10 - Volume 11.djvu/274

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NOTES AND QUERIES. [io s. XL MAK. 20, im

have forgotten that punishments were in- flicted under other authority than that of statutory law. He should have remembered this passage in the Third Part of the ' Insti- tutes ' (c. 101) : "Of Judgements, some be by the Common law, and some by Statute law, and some by Custome." Coke, it will be observed, places first judgments by Common Law, probably because they were more numerous than those under Statute Law.

There is a second misconception, arising out of the first, as to the absence of repealing statutes. A repealing statute implies a previous statute to be repealed. Punish- ments inflicted under the Common Law have been abolished, but there could be no question of repeal. Abolition might be effected without mention of the punishment. This happened in the case of the punish- ment peine forte et dure. This was in actual use till 1772, when it was abolished by 12 Geo. III. c. 20. But the Act does not mention the punishment : it merely enacts that persons thereafter arraigned for felony or piracy, standing mute, shall be convicted of the crime for which they are indicted.

As little validity is there in the second objection, based on the writer's assumption that there were limits to the cruelty of punishments which English officials would inflict, or the English people would endure. History shows that in England, as elsewhere, ingenuity was exhausted in devising cruel punishments. For centuries it was the practice to drag men over a rough road to the place of execution, to half-hang them, to disembowel them while still alive, and to burn their bowels before their faces. Surely this was a more bitter death than to be left to starve. It can only be because we are accustomed to read of drawing, hanging, and quartering that some may be inclined to regard as more terrible the punishment of gibbeting alive of which we have heard so little.

Thus we see that Mr. Hartshorne's objec- tions have no weight. So far from being "driven to a conclusion," he first, as too frequently happens, formed his conclusions, and then set aside the weighty evidence conflicting with his theory. What that evi- dence is we will now proceed to consider.

William Harrison (1534-93) was a canon of Windsor. When Holinshed's great chronicle was projected, Harrison was chosen to write for the work his famous ' Descrip- tion of England,' justly regarded as a trust- worthv and most valuable account of Eliza-

bethan England. It was written about 1580. In this ' Description ' Harrison gives an account of the punishments in use in his time. He says :

" But if he [the party accused] be conuicted of wilfull murther, doone either vpon pretended malice, or in anie notable robberie, he is either hanged aline in chaines neere the place where the fact was committed (or else vpon compassion taken first strangled with a rope) and so con- tinueth till his bones consume to nothing." Holinshed, ' Chron.,' vol. i. p. 184.

Next comes the testimony of Henry Chettle, dramatist and pamphleteer, who wrote a eulogy of Elizabeth, ' England's Mourning Garment,' published soon after her death. This is reprinted, from the second edition of 1603, in ' Harleian MSS.,' vol. iii. It contains this passage :

" But for herself, she was always so inclined to equity, that if she left justice in any part, it was in showing pity, as in one general punish- ment for murder it appeared : whereas, before time, there was extraordinary torture, as, hanging wilful murderers alive in chains ; she, having compassion, like a true shepherdess of their souls, though they were of her erring and utterly infected flock, said, ' Their death satisfied for death, and life for life was all that could be demanded." P. 532.

John Weever (1576-1632) was the author of a book, ' Ancient Fvnerall Monvments/ published in 1631. Of Weever the ' Dic- tionary of National Biography ' says :

" His transcripts [of sepulchral monuments] are often faulty, and errors in date abound. But to the historian and biographer the book, despite its defects, is invaluable. ' '

Weever says :

" He that commits the crying sinne of murther is vsvally hanged vp in chaines, so to continue vntill his bodie be consumed, at or neare the place where the fact was perpetrated."

In this passage the hanging in chains is not expressly stated to be of men alive, but, having regard to the statements of Harrison and Chettle, there can be little doubt as to the interpretation to be put on Weever's words.

Dr. John Gauden, Bishop of Exeter, wrote a ' Petitionary Remonstrance, pre- sented to O. P. [Oliver, Protector],' 4 Feb., 1655, printed after Cromwell's death (Thomasson Tracts, Brit. Mus. E. 765). It contains this passage :

" They [the ministers] are now brought, not to the Tarpeian Rock, whence by a sudden pre- cipitation, an end might be put to all their miseries, with their lives : But like Prometheus, they are bound alive with fatal chains to the mountain Caucasus ; where condemned to be idle, the vulture of famine, and all worldly calamities must be ever preying upon the bowels of themselves, their Wives and Children, being