Tyburn Tree. Alfred Marks
be confounded with another, singularly called “Trailbaston,” relating to criminal matters, as the other related to civil affairs. “Trailbaston,” which may be rendered “Bludgeon-men,” has sometimes been supposed to be so called from the justices themselves; but it is more probable that, as we find the word in the earliest mention of the subject, the bludgeon-men were those against whom operations were directed, just as we might to-day speak of a “hooligan Act” if an Act were specially devoted to these gentry.
The first official mention of Trailbaston is found in Rotuli Parliamentorum, under date 1305, when it already bore the nickname “Ordination de Trailbastons.” Justices were then assigned to inquire as to murders and felonies committed during the last eight years. In 1306 the inquisition, as would seem, had not got to work, as the king ordered that if the justices assigned are not sufficient for the duty, “a parfaire les busoignes qe touchent les pledz de Traillebaston,” more are to be assigned to the work. Five days later he sent a list of twenty-one justices, and the thirty-eight counties allotted to them severally. The inquisition of Trailbaston was found to work mainly as a great engine of oppression. In 1377 the Commons petitioned that there may be no manner of Trailbaston held in the realm during the war nor for twenty years. It is alleged that both civil and criminal inquisitions had for object to bring money into the exchequer by means of fines.[14]
To return to the subject of the multiplicity of courts. It is to be supposed that, in the circumstances, there were frequently conflicts between courts as to their respective jurisdiction. Of this conflict we find curious instances in the chronicles. Thus, in 1249, a thief was caught on the land of the abbat of Tewkesbury, but was suffered by the abbat’s bailiffs to be taken to the court of the Earl of Gloucester. After trial by this court the thief was hanged. On learning this, the abbat was greatly incensed, seeing that the franchise of his church had been invaded. Shortly after another case arose. John Milksop stole thirty-one pence from Walter Wymund, of Bristol. As soon as Walter discovered his loss, he raised the hue and cry, followed Milksop, traced him to a wood, captured him, and brought him into the abbat’s court. The earl’s bailiff protested: the abbat complained to the earl, who ordered inquiry. As nothing came of this, a second order was issued, and twelve persons were chosen to investigate the question. The abbat, finding the inquiry going against him, protested against the manner of proceeding, and went in person to the earl, then at some distance. The earl suggested that the abbat should keep the accused in prison till the earl’s return home. The abbat objected that he had neither castle nor prison in which to keep the man for so long a time. Then the earl ordered a fresh inquiry to be made against his return, the abbat meanwhile to try the man in his own court, and to hang him on the earl’s gallows. Milksop was tried accordingly, could make no good defence, and was hanged. The chronicle does not tell the end of the dispute.[15]
In the twelfth century the district near Dunstable, where Watling Street meets Icknield Street, was so infested by robbers that hardly could “a lawful man” pass that way. The chronicler, whose etymology is not above suspicion, states that Dunstable came by its name from one Dunning, a famous robber who haunted the region. Henry I., towards the end of his reign—say about 1130—founded Dunstable Priory, making over to it all his rights, including a free gallows for hanging thieves outside the town of Dunstable, in a place called Edescote.[16] The prior’s right was clear; nevertheless, in 1274, Eudo la Suche threw down the prior’s gallows and put up his own.[17]
Another instance. In 1290 Bogo de Knowill, the king’s bailiff of Montgomery, complained to our lord the king that Edmund Mortimer had laid hands upon a king’s man who had committed murder, had imprisoned him, in spite of the bailiff’s demands, had refused to give him up, had tried him in his own court, and hanged him, to the hurt of the franchise of the town of Montgomery, and against the crown and its dignity, etc. The king declared that Mortimer had forfeited his franchise of Wygemore, but agreed to restore it on payment of a fine. But, in addition, Mortimer must hand over to Bogo, the bailiff, an effigy, in the name and place of the man who had been hanged, the bailiff to hang the effigy, and to let it hang as long as may be. After a while, Mortimer complained that the bailiff unjustly retained the franchise in the king’s hand. Whereunto Bogo replied that the effigy had not been handed over to him, wherefore he held the franchise aforesaid until, etc. And the king ordered that the franchise should be held till the effigy should be handed over. This is the last heard of Bogo, Mortimer, and the effigy.[18]
In such cases more was touched than the dignity of the lord of the franchise. The concession of a franchise to hang generally included the right to “catalla felonum,” the goods of felons and of fugitives. “These courts,” says Sir James Fitzjames Stephen, “were a regular source of income to the lord of the franchise.” Irregularities and tyrannies of these petty courts, quarrelling over the right to imprison and hang, may be assumed: we understand how it was that in popular risings the lawyers were always singled out for vengeance.
How to execute? Even in regard to the way of mere hanging, the problem presented difficulties. In France, a rigid etiquette guarded the method of hanging. A franchise might give the right to hang upon trees only.[19] Some gallows had two pillars, some three, four, six, eight, according to the rank of the person erecting the gallows.[20] These nice distinctions are not to be discovered in English customs. There are, however, traces of strange practices. Four several bailiffs took part in the execution of a man hanged on the gallows of the prior of Spalding. The bailiff of Spalding brought the man to the gallows, the bailiff of Weston brought the ladder to the gallows, the bailiff of Pyncebecke found the rope, the rest was done by the bailiff of Multon.[21]
But hanging was one only out of numerous methods of carrying out a capital sentence: ingenuity seems to have exhausted itself in devising ways of putting a man to death. A law of Æthelstan decrees, “Let him be smitten so that his neck break.”[22] When leaving England for Palestine, Richard I. commanded that he who killed a man on board ship should be tied to the corpse and thrown into the sea: if the murder was committed on land, the murderer was to be buried alive with the body.[23] Boroughs had their own several customs. In one place any man taking another who had stolen to the value of 2s. 8½d., might forthwith hang him: for a second offence the amount was reduced to 8¼d. In Romney, at the end of the fifteenth century, the bailiff found the rope, the prosecutor was bound to find a hangman. Failing this he must himself do the hanging, or be put in prison with the felon till such time as he could find a hangman, or resolve to hang the man with his own hands. In another place a miller stealing flour to the value of 4d. was to be hanged from the beam of his mill.[24] At Sandwich a murderer was buried alive on Thief Down, where perhaps golf is now played.[25] In London, at the beginning of the fourteenth century, a man convicted of treason in the court of the mayor, was bound to a stake in the Thames during two flows and two ebbs of the tide.[26] Two centuries later “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 ouerwashed them.”[27] At Fordwich, in the fifteenth century, a man condemned to death was carried to a place called Thieves’ Well, there bound hand and foot and thrown in by the prosecutor.[28] At Dover, the condemned man was led to a cliff called Sharpnesse, and there executed by “infalistation,” a word which puzzled the learned Selden. It means that the offender was thrown over the cliff (falaise) on to the beach below.[29] Elsewhere the criminal was thrown into the harbour at high tide; elsewhere, again, he was burnt.[30]
In his “Description of England,” forming part of Holinshed’s Chronicle, Harrison tells of ways of execution in practice when he wrote, about 1580: “He that poisoneth a man is to be boiled to death in water or lead, although the party die not of the practise.” Harrison is here mistaken. The enactment of boiling to death was due to one malefactor, who achieved the rare distinction of having an Act of Parliament directed against himself. The Act, 22 Henry VIII. (1530–1) c. 9, tells the story. It begins by stating that the crime of poisoning has in this realm been most rare, and continues thus:—
“And now in the tyme of this presente parliament, that is to saye in the xviijᵗʰ daye of Februarye in the xxij yere of his moste victorious reygn, one Richarde Roose late of Rouchester in the Countie of Kente coke, otherwyse called Richarde Coke, of his moste wyked and dampnable dysposicyon dyd caste a certeyne venym or poyson into a vessell replenysshed