Tyburn Tree. Alfred Marks
an execution taking place a few years earlier. How far back can we, in the absence of records, conjecturally place the dedication of Tyburn to executions? We can say, with a high degree of probability, that Tyburn was not established till after the Conquest, and, further, not till after the death of the Conqueror.
Hanging was not greatly in favour with those whom we must, in spite of objections, call the Anglo-Saxons. Various fanciful definitions of Time have been given. According to Goethe, it is on the roaring loom of Time that the Earth-Spirit weaves the living garments of God. According to Carlyle, Time is the outer veil of Eternity. These poetical definitions seem to have little or no practical value. They would convey nothing, for instance, to the time-keeper of a wharf or great warehouse. It has been reserved for our race to give a definition of real solid value: “Time is money.” The phrase, revealing in three words the soul of a people, has gone the round of the world in its native tongue, hailed from pole to pole as the final definition of Time. We might look with confidence to find in the origins of a people alone capable of making this supreme discovery instances of this practical outlook on the universe. We shall not be disappointed. The laws of our forefathers, based on this commercial view, were administered, with a strict eye to business, on the joint-stock or co-operative principle. To kill a man was mere waste, if money could be screwed out of him or out of those who could be made responsible for him. “Business is Business.” Every man—in a sense different from that in which Walpole used the words—every man had his price. Men, according to rank, were carefully appraised: a man’s “were” was so much, his “wite” so much. A murderer must pay these sums, or they must be paid by those responsible for him. And not only every man, but every part of each man had its price. One sees in encyclopædias of domestic economy, prepared for the instruction of young and thrifty housekeepers, diagrams setting out the differences in value of such and such parts of an ox, a sheep, or of “a side” of bacon. Such a chart for use by an Anglo-Saxon dispenser of justice would have had to be executed on a large scale. The human body was divided into thirty-four parts, upon each of which was placed a fixed value. It is needless to give here all the thirty-four categories; it will be sufficient to set out the prices to be paid for injuries to the arm and hand:—
“If the arm-shanks be both broken, the bōt is xxx shillings.
If the thumb be struck off, for that shall be xxx shillings as bōt. If the nail be struck off, for that shall be v shillings as bōt.
If the shooting (i.e., fore-) finger be struck off, the bōt is xv shillings: for its nail it is iv shillings.
If the middlemost finger be struck off, the bōt is xii shillings, and its nail’s bōt is ii shillings.
If the gold (i.e., ring-) finger be struck off, for that shall be xvii shillings as bōt, and for its nail iv shillings as bōt.
If the little finger be struck off, for that shall be as bōt ix shillings, and for its nail one shilling, if that be struck off.”[78]
The authors of a code so thoroughly commercial in spirit naturally regarded theft as the worst of crimes, and hanging was probably common for this offence, if the thief could not redeem himself. Thus we read in the laws of Æthelstan: “That no thief be spared over xii pence, and no person over xii years, who we learn, according to folk-right, that he is guilty, and can make no denial: that we slay him and take all that he has.”[79]
William the Conqueror abolished capital punishment. For this he has been highly eulogised by Mr. J. R. Green, who writes of “strange touches of a humanity far in advance of his age,” of “his aversion to shed blood by process of law.” But he omits to tell us that for the punishment of death William substituted punishments which, as Mr. Freeman justly says, “according to modern ideas were worse than death.” It is indeed “a strange touch of humanity” which prescribed the tearing out of a man’s eyes and the lopping off of his limbs. A terrible picture of a land haunted by sightless and maimed trunks is conjured up by the words of William’s law, “so that the trunk may remain alive as a sign of its crimes.”[80]
The penalty for breach of this law, confiscation of all the offender’s property, was so severe that we may well believe that capital punishment was actually abolished during the reign of William.
It appears that capital punishment was re-instituted by Henry I. in 1108, and there seems no reason for doubting the statement, though the evidence was not wholly accepted by Sir James Fitzjames Stephen.
“The English king, Henry, established his peace and settled law, by which, if any one was taken in theft or robbery, he should be hanged.”[81]
The institution of the gallows of Tyburn probably dates from this time. The origin of Tyburn is certainly Norman; its early name, “The Elms,” testifies to this, for among the Normans the elm was the tree of justice. Here is the record of a symbolic elm so famous that its fall awakened an echo in the distant scriptorium of Peterborough:—
“A.D. 1188. In this year, Philip, king of France, cut down an Elm in his dominions, between Gisors and Trie, where frequently conferences had been held in virtue of an ancient custom instituted by his predecessors, between them and the Dukes of Normandy.”[82]
Something of this symbolical character was retained by the elm in France long after the name “The Elms” had been forgotten here. Rabelais (1483?-1553) speaks of “juges sous l’orme,” and, later, Loyseau (1556–1627) has a great deal to say of these “judges under the elm-tree.”[83]
“The Elms” of Smithfield came by the name in the same way, as, there is little doubt, did also “The Elms,” now Dean’s Yard, in the precincts of Westminster Abbey; “The Elms” in the abbey lands at Covent Garden, and “Homors” in the precincts of Canterbury Cathedral, derived, no doubt correctly, by Professor Willis, from a corruption of Ormeaux, Ormayes, Ormoies, or Ormerie, plantations of elms.[84] In like manner Elms Lane, now Elms Mews, a turning out of the Bayswater or Uxbridge Road, probably preserves the name given to the gallows which the abbat of Westminster had at “Westburn” towards the end of the thirteenth century.[85]
It would not be surprising to find more of such names, in form more or less corrupt, in connection with places in the precincts of old monastic foundations. It may even be hoped that some of the gallows of the abbat of Westminster, in addition to the gallows of “Westburn,” have bequeathed place-names still surviving.
Before introducing further evidence as to the establishment of gallows at Tyburn, reference must be made to the confusion existing between “The Elms” of Tyburn and “The Elms” of Smithfield. Maitland, and after him Parton,[86] maintained, in ignorance or oblivion of the facts, that the gallows (presumably for Middlesex) formerly stood at “The Elms” of Smithfield; that, at some date before 1413, the gallows was removed to St. Giles’s, where it continued till its removal to Tyburn. But this ignores the fact that a gallows did undoubtedly exist at Tyburn at the end of the twelfth century. There is, besides, no evidence whatever that a royal gallows ever existed at St. Giles’s, except when a gallows was erected here for a special case.[87] There may possibly have been here a local, manorial gallows, for, as has been shown, such gallows abounded. There was even another gallows at Tyburn, set up by the Earl of Oxford, who, when challenged, seems to have admitted that he had no right to erect a gallows here.[88]
The confusion will cease if we keep firm hold of the fact that Smithfield was within the liberty of the city, and that the civic gallows was here erected. There is not, so far as I know, any evidence as to the suppression of the civic gallows at Smithfield. There were in late times executions here, but so there were in many other places. Smithfield comes into notice in the second year of the fifteenth century as the place of execution, by burning, for heresy, a character which it retained so long as the punishment was inflicted.[89]
It is not at all probable that the first execution recorded as having taken place at Tyburn in 1196 was actually the first execution there. I have ventured to allot to Tyburn an execution which took place in London in 1177, nineteen years before the execution of William Longbeard. There is evidence of the existence of a gallows at Tyburn at an uncertain date, but going in probability