Tyburn Tree. Alfred Marks
and very little else.” Nor do we find much more in those most dismal of books called “Constitutional Histories.” They mention Tyburn only in connection with the execution of some one who infringed the rules as at the time understood, of The Game played at Westminster, before the establishment of the present perfect accord between the Ins and the Outs, between those whom Cobbett irreverently calls the rooks at the top of the tree and the daws on the lower branches.
The story of Tyburn is one of the strangest, surely one also of the saddest, in the history of the people. To understand it, we must consider the social and legal conditions which found their outcome at Tyburn.
WHOM TO EXECUTE? WHO IS TO EXECUTE? HOW TO EXECUTE?
These questions have, after much experimenting, been so completely answered that it is to-day difficult to realise that each question has presented serious problems. We hang only those found guilty of murder, to the regret of jurists like Sir James Fitzjames Stephen, who thought that the punishment of death ought to be inflicted in many other cases.[1] But in times not very remote there were on the Statute Book, as has been reckoned, no fewer than two hundred capital offences. No man is now hanged except after trial and conviction by a Court of Assize, or by the Central Criminal Court. A person so convicted is executed by the common hangman in the simple manner invented long ago by some one who discovered that a rope tied about a man’s neck is held in position by the projecting mass of the head.
In old times the country swarmed with courts of inferior jurisdiction, each, however, with the power of hanging thieves. There is a satirical story telling how a man who had suffered shipwreck scrambled up a cliff, and, seeing a gallows, fell on his knees, and thanked God that he found himself in a Christian country. In the England of the thirteenth century he would not have had to travel far into the interior to find this mark of Christian civilisation. The right to erect a gallows was frequently granted, and perhaps even more frequently assumed without legal right. In the grants of franchises to monasteries we find, together with the concession of assize of bread and beer, and judgment of fire and water—together with these we find franchise of “swa full and swa forth,” &c., of sac and soc, tol and theam, flem and fleth, blodwith, grithbrith, flemensferd, infangethef and utfangethef. And among such franchises, some of which are a puzzle to the learned, we find a franchise easily understood, of “furca et fossa,” of gallows and pit, gallows for men, pit, full of water, for women.[2] All these numerous franchises were rights of the crown—jura regalia—often granted to monasteries and to individuals. In a record of which more will have to be said, we read that at the end of the thirteenth century there were no fewer than fifteen gallows in the hundred of Newbury alone, mostly belonging to religious. Among them we find one belonging to a prioress, a not uncommon case. It is distressing to think that Chaucer’s tender-hearted prioress, who “wolde weepe if that sche sawe a mous caught in a trappe, if it were deed or bledde,” had a gallows on which—by the hands of her bailiff—she hanged thieves. There is little doubt that she had her gallows.
But one’s first surprise at the enormous number of gallows subsides when we consider the conditions of life in early times. The country was thickly wooded: immense forests gave shelter to robbers, thieves, to all under the ban of the law. One of the laws of Ina runs, “If a far-coming man, or a stranger, journey through a wood, out of the highway, and neither shout nor blow his horn, he is to be held for a thief, either to be slain, or redeemed.” To come to later times—there is a tradition that the stewardship of the Chiltern Hundreds was instituted for the purpose of putting down thieves. Tradition it may be called, for the conjecture is not supported by evidence. Thus, in a Parliamentary paper issued in 1894, there are some notes on the history of the stewardship. As to its origin, these notes do not go behind Wharton’s Law Dictionary, and Chambers’s Encyclopædia. Here is the story of the origin of the stewardship, or as it would be more properly called, the wardenship. Leofstan, the abbat here named, was a friend of Edward the Confessor; it is known from an old record that he was abbat in 1047. In reading the narrative we must remember that the “Ciltria” of the story was a wider district than that to which we now give the name of Chiltern.
“THE STORY OF THE CHILTERN HUNDREDS.
“This same abbat Leofstan, also called Plumstan, being a simple and pious man, full of compassion for all persons in peril, in order to make the roads safer for travellers, merchants and pilgrims faring to the church of the Blessed Alban, whether for the expiation of their sins, or for their worldly profit, caused to be cut down, chiefly along the royal road called Watling Street, the dense forests stretching from the border of Ciltria almost as far as to the north side of London: he also cleared the rough places, made bridges and levelled the way. For there were at that time all over Ciltria vast, dense forests, giving shelter to many different kinds of wild beasts, namely, wolves, wild boars, wild bulls, and stags, and, more dangerous still, to robbers, thieves by day and thieves by night, men banished from the realm, fugitives from justice. Wherefore abbat Leofstan—not to the loss, but to the good of this church—made over to a certain most stout and valiant knight, Turnot by name, and to two of his companions, Waldef and Thurman, the manor of Flamstude [Flamstead lies a little to the west of Watling Street], for which Turnot gave privately to the abbat five ounces of gold, a most beautiful palfrey, and a desirable greyhound. Which was done on these conditions—that the said Turnot, with his fellow-knights before named, and their followers, should protect the western parts, most haunted by robbers, and effectually guard the same, with the stipulation that they should make good any loss arising from their negligence. And if a general war should break out in the kingdom, they should use their utmost diligence, and do all in their power to protect the church of St. Alban. And these covenants Turnot and his companions faithfully observed, as did also their heirs up to the time when King William conquered England. Then, because they disdained to come under the yoke of the Normans, the manor was taken from them. Refusing to submit, they chose rather to betake themselves to the forest, and laid ambushes for the Normans who had taken possession of their lands, burnt their houses, and killed many of them. But, the king’s affairs going well, some made their peace with him, some were captured and punished. … However, a certain noble, Roger de Thoni by name, who, in the distribution of lands, came into possession of the manor, did not refuse to acknowledge the right of St. Alban’s, and zealously performed the before-mentioned duty. He was highly renowned in arms, a Norman by race, of the stock of those famous soldiers who are called after the Swan.”[3]
As the chronicler, who is supposed to have written before 1259, says nothing of any lapse of the agreement, it seems probable that it was still in force in his day, and that the wardenship has existed continuously from the eleventh century to our own days.
About a century later matters had got from bad to worse:—
About 1160. A kind of robbers not before heard of began to infest the country. Disguised as monks, these men joined travellers, and when they reached the spot where their fellows were lying in ambush, they gave a signal, and, turning on the deluded wayfarers, robbed and murdered them.[4]
Still a century later, in 1249, bitter complaints were made by certain merchants of Brabant of the unsafe state of the roads in the neighbourhood of Winchester. These merchants had been robbed of two hundred marks by men whose faces they had seen about the court. They threatened reprisals on the goods of English merchants in Brabant. The king, greatly moved, took strong measures. Twelve persons were selected and sworn to give up the names of robbers known to them, but after deliberation they refused to inculpate any one. They were thrown into prison, and twelve others were chosen. These, finding that the first twelve were condemned to be hanged, gave up the names of many men, of whom some thirty were hanged, an equal number being thrown into prison. It is clear that there existed a widespread organisation in which were involved some belonging to the king’s household. These put the blame on the king himself: they had not received their pay, and were compelled to rob in order to maintain themselves.
The severe measures taken on this occasion did not cure the disease. Four years later, the king, acting on the advice