LIVES OF THE
MOST REMARKABLE
CRIMINALS
Who have been Condemned and Executed for Murder, the Highway, Housebreaking, Street Robberies, Coining or other offences
"Collected from Original Papers and Authentic Memoirs, and Published in 1735"
EDITED BY
ARTHUR L. HAYWARD
Sourced from Project Gutenberg
INTRODUCTION
"To close the scene of all his actions he Was brought from Newgate to the fatal tree; And there his life resigned, his race is run, And Tyburn ends what wickedness begun."
If there be a haunted spot in London it must surely be a few square yards that lie a little west of the Marble Arch, for in the long course of some six centuries over fifty thousand felons, traitors and martyrs took there a last farewell of a world they were too bad or too good to live in. From remote antiquity, when the seditious were taken "ad furcas Tyburnam", until that November day in 1783 when John Austin closed the long list, the gallows were kept ever busy, and during the first half of the eighteenth century, with which this book deals, every Newgate sessions sent thither its thieves, highwaymen and coiners by the score.
There has been some discussion as to the exact site of Tyburn gallows, but there can be little doubt that the great permanent three-beamed erection--the Triple Tree--stood where now the Edgware Road joins Oxford Street and Bayswater Road. A triangular stone let into the roadway indicates the site of one of its uprights. In 1759 the sinister beams were pulled down, a moveable gibbet being brought in a cart when there was occasion to use it. The moveable gallows was in use until 1783, when the place of execution was transferred to Newgate; the beams of the old structure being sawn up and converted to a more genial use as stands for beer-butts in a neighbouring public-house.
The original gallows probably consisted of two uprights with a cross-piece, but when Elizabeth's government felt that more adequate means must be provided to strengthen its subjects' faith and enforce the penal laws against Catholics, a new type of gibbet was sought. So in 1571 the triangular one was erected, with accommodation for eight such miscreants on each beam, or a grand total of twenty-four at a stringing. It was first used for the learned Dr. John Story, who, upon June 1st, "was drawn upon a hurdle from the Tower of London unto Tyburn, where was prepared for him a new pair of gallows made in triangular manner". There is rather a gruesome tale of how, when in pursuance of the sentence the executioner had cut him down and was "rifling among his bowels", the doctor arose and dealt him a shrewd blow on the head. Doctor Story was followed by a long line of priests, monks, laymen and others who died for their faith to the number of some three thousand. And the Triple Tree, the Three-Legged Mare, or Deadly Never-green, as the gallows were called with grim familiarity, flourished for another two hundred years.
In the early eighteenth century it appears to have been the usual custom to reserving sentencing until the end of the sessions, but as soon as the jury's verdict of guilty was known steps were taken to procure a pardon by the condemned man's friends. They had, indeed, much more likelihood of success in those times when the Law was so severe than in later days when capital punishment was reserved for the most heinous crimes. On several occasions in the following pages mention is made of felons urging their friends to bribe or make interest in the right quarters for obtaining a pardon, or commutation of the sentence to one of transportation. It was not until the arrival of the death warrant that the condemned man felt that the "Tyburn tippet" was really being drawn about his neck.
No better description can be given of the ride to Tyburn tree, from Newgate and along Holborn, than that furnished by one of the "Familiar Letters" written by Samuel Richardson in 1741:
I mounted my horse and accompanied the melancholy cavalcade from Newgate to the fatal Tree. The criminals were five in number. I was much disappointed at the unconcern and carelessness that appeared in the faces of three of the unhappy wretches; the countenance of the other two were spread with that horror and despair which is not to be wondered at in men whose period of life is so near, with the terrible aggravation of its being hastened by their own voluntary indiscretion and misdeeds. The exhortation spoken by the Bell-man, from the wall of St. Sepulchre's churchyard is well intended; but the noise of the officers and the mob was so great, and the silly curiosity of people climbing into the cart to take leave of the criminals made such a confused noise that I could not hear the words of the exhortation when spoken, though they are as follows:
All good people pray heartily to God for these poor sinners, who are now going to their deaths; for whom this great bell doth toll.
You that are condemned to die, repent with lamentable tears. Ask mercy of the Lord for the salvation of your own souls through the merits, death and passion of Jesus Christ, Who now sits at the right hand of God, to make intercession for as many of you as penitently return unto Him.
Lord, have mercy upon you! Christ have mercy upon you!
Which last words the Bell-man repeats three times.
All the way up to Holborn the crowd was so great as at every twenty or thirty yards to obstruct the passage; and wine, notwithstanding a late good order against this practice, was brought to the malefactors, who drank greedily of it, which I thought did not suit well with their deplorable circumstances. After this the three thoughtless young men, who at first seemed not enough concerned, grew most shamefully wanton and daring, behaving, themselves in a manner that would have been ridiculous in men in any circumstances whatever. They swore, laughed, and talked obscenely, and wished their wicked companions good luck with as much assurance as if their employment had been the most lawful.
At the place of execution the scene grew still more shocking, and the clergyman who attended was more the subject of ridicule than of their serious attention. The Psalm was sung amidst the curses and quarrelling of hundreds of the most abandoned and profligate of mankind, upon them (so stupid are they to any sense of decency) all the preparation of the unhappy wretches seems to serve only for subject of a barbarous kind of mirth, altogether inconsistent with humanity. And as soon as the poor creatures were half dead, I was much surprised to see the populace fall to hauling and pulling the carcasses with so much earnestness as to occasion several warm rencounters and broken heads. These, I was told, were the friends of the persons executed, or such as, for the sake of to-night, chose to appear so: as well as some persons sent by private surgeons to obtain bodies for dissection. The contests between these were fierce and bloody, and frightful to look at; so I made the best of my way out of the crowd, and with some difficulty rode back among the large number of people who had been upon the same errand as myself. The face of every one spoke a kind of mirth, as if the spectacle they had beheld had afforded pleasure instead of pain, which I am wholly unable to account for....
One of the bodies was carried to the lodging of his wife, who not being in the way to receive it, they immediately hawked it about to every surgeon they could think of; and when none would buy it they rubbed tar all over it, and left it in a field scarcely covered with earth.
In a few words, too, Swift draws a vivid picture of a rogue on his last journey through the London streets:
His waistcoat, and stockings, and breeches were white; His cap had a new cherry ribbon to tie't. The maids to the doors and the balconies ran, And said, "Lack-a-day, he's a proper young man!" But as from the windows the ladies he spied, Like a beau in a box, he bow'd low on each side.
Execution day, or Tyburn Fair, as it was jocularly called, was not only a holiday for the ragamuffins and idlers of London; folk of all classes made their way thither to indulge a morbid desire of seeing the dying agonies of a fellow being, criminal or not. There were grand stands and scaffoldings from which the more favoured could view the proceedings in comfort, and every inch of window space and room on the neighbouring roofs was worth a pretty penny to the owners. In his last scene of the career of the Idle Apprentice Hogarth drew a picture of Tyburn Tree which no description can amplify.
As the procession drew near the hangman clambered to the cross-piece of the gallows and lolled there, pipe in mouth, until the first cart drew up beneath him. Then he would reach down, or one of his assistants would pass up, one after the other, the loose ends of the halters which the condemned men had had placed round their necks before leaving Newgate. When all were made fast Jack Ketch climbed down and kicked his heels until the sheriff, or maybe the felons themselves, gave him the sign to drive away the cart and leave its occupants dangling in mid-air. The dead men's clothes were his perquisite, and now was his time to claim them. There is a graphic description of how, on one occasion, when the murderer "flung down his handkerchief for the signal for the cart to move on, Jack Ketch, instead of instantly whipping on the horse, jumped on the other side of him to snatch up the handkerchief, lest he should lose his rights. He then returned to the head of the cart and jehu'd him out of the world".
As the cart drew away a few carrier pigeons, which were released from the galleries, flew off City-ward to bear the tidings to Newgate.
Perhaps as good a description of the actual event as can be obtained is contained in a letter from Anthony Storer to his friend George Selwyn, a morbid cynic whose cruel and tasteless bon-mots were hailed as wit by Horace Walpole and his cronies. The execution was that of Dr. Dodd, the "macaroni parson", whose unfortunate vanity led him to forgery and Tyburn. The date--June 27, 1777--is considerably after the period of our book, but the description applies as well as if it had been written expressly for it.
Upon the whole, the piece was not very full of events. The doctor, to all appearances, was rendered perfectly stupid from despair. His hat was flapped all round, and pulled over his eyes, which were never directed to any object around, nor even raised, except now and then lifted up in the course of his prayers. He came in a coach, and a very heavy shower of rain fell just upon his entering the executioner's cart, and another just at his putting on his nightcap. During the shower an umbrella was held over his head, which Gilly Williams, who was present, observed was quite unnecessary, as the doctor was going to a place where he might be dried.
He was a considerable time in praying, which some people standing about seemed rather tired with; they rather wished for a more interesting part of the tragedy. The wind, which was high, blew off his hat, which rather embarrassed him, and discovered to us his countenance, which we could scarcely see before. His hat, however, was soon restored to him, and he went on with his prayers. There were two clergymen attending on him, one of whom seemed very much affected. The other, I suppose, was the Ordinary of Newgate, as he was perfectly indifferent and unfeeling in everything he did and said.
The executioner took both the hat and wig off at the same time. Why he put on his wig again I do not know, but he did; and the doctor took off his wig a second time, and then tied on the nightcap which did not fit him; but whether he stretched that or took another, I did not perceive. He then put on his nightcap himself, and upon his taking it he certainly had a smile on his countenance, and very soon afterwards there was an end of all his hopes and fears on this side of the grave. He never moved from the place he first took in the cart; seemed absorbed in despair and utterly dejected; without any other sign of animation but in praying. I stayed until he was cut down and put in the hearse.
But the hangman's work was not always done when he had turned off his man. The full sentence for high treason, for example, provided him with much more occupation. In the first place, the criminal was drawn to the gallows and not carried or allowed to walk. Common humanity had mitigated this sentence to being drawn upon a hurdle or sledge, which preserved him from the horrors of being dragged over the stones. Having been hanged, the traitor was then cut down alive, and Jack Ketch set about disembowelling him and burning his entrails before he died. The head was then completely severed, the body quartered and the dismembered pieces taken away for exhibition at Temple Bar and other prominent places.
Here is the account of one such execution. "After the traitor had hung six minutes he was cut down, and having life in him, as he lay upon the block to be quartered, the executioner gave him several blows on his breast, which not having the effect designed, he immediately cut his throat; after which he took his head off; then ripped him open and took out his bowels and heart, and then threw them into a fire which consumed them. Then he slashed his four quarters and put them with the head into a coffin.... His head was put on Temple Bar and his body and limbs suffered to be buried."
Such proceedings were exceptional, however. In the majority of executions the body was taken down when life was considered to be extinct, and carried away to Surgeon's Hall for dissection. Sometimes the relatives used their influence to have the corpse handed over to them (often not even in a coffin) and they then carried it away in a coach for decent burial, or to try resuscitation. Occasionally, indeed, hanged men came to life again. In 1740 one Duel, or Dewell, was hanged for a rape, and his body taken to Surgeons' Hall in the ordinary routine. As one of the attendants was washing it he perceived signs of life. Steps were taken immediately and Duel was brought to, and eventually taken away in triumph by the mob, who had got wind of the affair and refused to allow the Law to re-hang their man. A little earlier something of the same sort had happened to John Smith, who had been hanging for five minutes and a quarter, during which time the hangman "pulled him by the legs and used other means to put a speedy period to his life", when a reprieve arrived and he was cut down. He was hurried away to a neighbouring tavern where restoratives were given, blood was let, and after a time he came to himself, "to the great admiration of the spectators". According to his own account of the affair, he felt a terrible pain when first the cart drew away and left him dangling, but that ceased almost at once, his last sensation being that of a light glimmering fitfully before his eyes. Yet all his previous agony was surpassed when he was being brought to, and the blood began to circulate freely again. A last ignominy, and one strangely dreaded by some of the most hardened criminals, was hanging in irons. When life was extinct the corpse was placed in a sort of iron cage and thus suspended from a gibbet, usually by the highway or near the place where the crime had been committed. There it hung until it fell to pieces from the effects of Time and the weather, and only a few hideous bones and scraps of dried flesh remained as evidence of the strong hand of the Law.
With the exception of minor alterations in punctuation and spellings this book is a complete reprint of three volumes printed and sold by John Osborn, at the Golden Ball, in Paternoster Row, 1735.
A. L. H.
PREFACE TO VOLUME 1
"The clemency of the Law of England is so great that it does not take away the life of any subject whatever, but in order to the preservation of the rest both by removing the offender from a possibility of multiplying his offences, and by the example of his punishment intending to deter others from such crimes as the welfare of society requires should be punished with the utmost severity of the Law. My intention in communicating to the public the lives of those who, for about a dozen years past have been victims to their own crimes, is to continue to posterity the good effects of such examples, and by a recital of their vices to warn those who become my readers from ever engaging in those paths which necessarily have so fatal an end. In the work itself I have, as well as I am able, painted in a proper light those vices which induce men to fall into those courses which are so justly punished by the Legislature."
"I flatter myself that however contemptible the" Lives of the Criminals, "etc., may seem in the eyes of those who affect great wisdom and put on the appearance of much learning, yet it will not be without its uses amongst the middling sort of people, who are glad to take up with books within the circle of their own comprehension. It ought to be the care of all authors to treat their several subjects so that while they are read for the sake of amusement they may, as it were imperceptibly, convey notions both profitable and just. The adventures of those who, for the sake of supplying themselves with money for their debaucheries, have betaken themselves to the desperate trade of knights of the road, often have in them circumstances diverting enough and such as serve to show us what sort of amusements they are by which vice betrays us to ruin, and how the fatal inclination to gratify our passions hurries us finally to destruction."
"I would not have my readers imagine however, because I talk of rendering books of this kind useful, that I have thrown out any part of what may be styled interesting. On the contrary, I have carefully preserved this and as far as the subject would give me leave, improved it, but with this caution always, that I have set forth the entertainments of vice in their proper colours, lest young people might be led to take them for innocent diversions, and from figures not uncommon in modern authors, learn to call lewdness gallantry, and the effects of unbridled lust the starts of too warm an imagination. These are notions which serve to cheat the mind and represent as the road of pleasure that which is indeed the highway to the gallows. This, I conceived, was the use proper to be made of the lives, or rather the deaths of malefactors, and if I have done no other good in writing them, I shall have at least this satisfaction, that I have preserved them from being presented to the world in such a dress as might render the" Academy of Thieving "their proper title, a thing once practised before, and if one may guess from the general practice of mankind, might probably have been attempted again, with success. How a different method will fare in the world, time only can determine, and to that I leave it. Yet considering the method in which I treat this subject, I readily forsaw one objection which occasioned my writing so long a preface as this, in order that it might be fully obviated."
"Though in the body of the work itself I have carefully traced the rise of those corrupt inclinations which bring men to the committing of facts within the cognizance of the Law, it still remains necessary that my readers also become acquainted, at least in general, with what those facts are which are so severely punished. In doing this I shall not speak of matters in the style of a lawyer, but preserve the same plainness of language which, as I thought it the most proper, I have endeavoured throughout the whole piece."
"The order of things requires that I should first of all take notice how the Law comes to have a right of punishing those who live under it with Death or other grievous penalties, and this in a few words arises thus. We enter into society for the sake of protection, and as this renders certain laws necessary, we are justly concluded by them in other cases for the protection of others; but of all the criminal institutions which have been settled in any nation, never was any more just, more reasonable, or fuller of clemency, than that which is called the Crown Law in England. In speaking of this it may not be improper to explain the meaning of that term, which seems to take its rise from the conclusion of indictments, which run always" contra pacem dicti domini regis, coronam et dignitatem suam "(against the peace of our Sovereign Lord the King, his Crown and Dignity) and therefore, as the Crown is always the prosecutor against such offenders, the Law which creates the offence is with propriety enough styled the Crown Law."
"The first head of Crown Law is that which concerns offences committed against God, and anciently there were three which were capital, viz., heresy, witchcraft and sodomy; but the law passed in the reign of King Charles the Second for taking away the writ" de Haeretica comburendo, "leaves the first not now punishable with death, even in its highest degree. However, by a statute made in the reign of King William, persons educated in the Christian religion who are convicted of denying the Trinity, the Christian religion, or the authority of the Scriptures, are for the first offence to be adjudged incapable of office, for the second to be disabled from suing in any action, and over and above other incapacities to suffer three years' imprisonment. As to witchcraft, it was formerly punished in the same manner as heresy. In the time of Edward the Third, one taken with the head and face of a dead man and a book of sorcery about him, was brought into the King's Bench, and only sworn that he would not thenceforth be a sorcerer, and so dismissed, the head, however, being burnt at his charge. There was a law made against conjurations, enchantments and witchcraft, in the days of Queen Elizabeth, but it stands repealed by a statute of King James's time, which is the law whereon all proceedings at this day are founded. By this law, any person invoking or conjuring any evil spirit, covenanting with, employing, feeding, or rewarding them, or taking up any dead person out of their grave, or any part of them, and making use of it in any witchcraft, sorcery, etc., shall suffer death as a felon, without benefit of clergy, and this whether the spirits appear, or whether the charm take effect or no. By the same statute those who take upon them by witchcraft, etc., to tell where treasure is hid, or things lost or stolen should be found, or to engage unlawful love, shall suffer for the first offence a year's imprisonment, and stand in the pillory once every quarter in that year six hours, and if guilty a second time, shall suffer death; even though such discoveries should prove false, or charms, etc., should have no effect. Executions upon this Act were heretofore frequent, but of late years, prosecutions on these heads in which vulgar opinion often goes a great way have been much discouraged and discontinued. As for the last head it remains yet capital, by virtue of a statute made in the reign of Henry VIII, which had been repealed in the first of Queen Mary, and was revived in the fifth of Queen Elizabeth, by which statute, after reciting that the laws then in being in this realm were not sufficient for punishing that detestable vice, it is enacted that such crimes for the future, whether committed with mankind or beasts, should be punished as felonies without benefit of clergy."
"It is wide of my purpose to dwell any longer on those crimes which are by the laws styled properly against God, seeing none of the persons mentioned in the following work were executed for doing anything against them. Let us therefore pass on to the second great branch of the Crown Law, viz., offences immediately against the King, and these are either treasons or felonies. Of treasons there are four kinds, all settled by the Statute of the 25th of Edward the Third. The two latter only, viz., offences against the King's great or privy seal, and offences in counterfeiting money, have anything to do with our present design, and therefore we shall speak particularly of them. Not only the persons who actually counterfeit those seals, but even the aiders and consenters to such counterfeiting, are within the Act, and by a statute made in the reign of Queen Mary, counterfeiting the sign manual or privy signet, is also made high treason. By the same statute of Edward the Third, the making of false money, or the bringing it into this realm, in deceit of our Lord the King and his people, was also declared to be high treason, but this Act being found insufficient, clippers being not made guilty either of treason or of misprison of treason, it was helped in that respect by several other Acts; but the fullest of all was the Act made in the reign of the late King William, and rendered perpetual by a subsequent Law made in the reign of her late Majesty [Anne], whereby it is enacted, that whoever shall make, mend, buy, sell, or have in his possession, any mould or press for coining, or shall convey such instruments out of the King's Mint, or mark on the edges of any coin current or counterfeit, or any round blanks of base metal, or colour or gild any coin resembling the coin of this kingdom, shall suffer death as in case of high treason. At the time when these laws were made coining and clipping were at a prodigious height, and practised not only by mean and indigent persons but also by some of tolerable character and rank, insomuch that these executions were numerous for some years after passing the said Act, which as it created some new species of high treason, so it also made felony some other offences against the coin which were not so, or at least were not clearly so before, viz., to blanch copper for sale; or to mix blanch copper with silver, or knowingly or fraudulently to buy any mixture which shall be heavier than silver, and look, touch, and wear like gold, but be manifestly worse; or receive, or pay any counterfeit money at a lower rate than its denomination doth import, shall be guilty of felony."
"A third head under which, in this cursory account of Crown Law, I shall range other offences that are punished capitally, are those against our fellow subjects, and they are either committed against their lives, their goods or their habitations. With respect to those against life, if one person kill another without any malice aforethought, then that natural tenderness of which the Law of England is full, interposes for the first fact, which in such a case is denominated manslaughter. Yet there is a particular kind of manslaughter which, by the first of King James, is made felony without benefit of clergy, and that is, where a person shall stab or thrust any person or persons that have not any weapon drawn (or that have not first struck the party which shall so stab or thrust), so that the person or persons so stabbed or thrust shall die within six months next following, though it cannot be proved that the same was done of malice aforethought. This Act it is which is commonly called the Statute of Stabbing."
"As to murder properly so called, and taking it as a term in the English Law, it signifies the killing of any person whatsoever from malice aforethought, whether the person slain be an Englishman or not, and this may not only be done directly by a wound or blow, but also by deliberately doing a thing which apparently endangers another's life, so that if death follow thereon he shall be adjudged to have killed him. Such was the case of him who carried his sick father from one town to another against his will in a frosty season. It would be too long for this Preface, should I endeavour to distinguish the several cases which in the eye of the Law come under this denomination; having, therefore, a view to the work itself, I shall distinguish two points only from which malice prepense is presumed in Law."
"(1) Where an express purpose appears in him who kills, to do some personal injury to him who is slain; in which case malice is properly to be expressed."
"(2) Where a person in the execution of an unlawful action kills another, though his principal intent was not to do any personal injury to the person slain; in which case the malice is said to be implied."
"As to duels where the blood has once cooled, there is no doubt but he who kills another is guilty of wilful murder; or even in case of a sudden quarrel, if the person killing appear by any circumstance to be master of his temper at the time he slew the other, then it will be murder. Not that the English Law allows nothing to the frailties of human nature, but that it always exerts itself where there appears to have been a person killed in cool blood. Far this reason the seconds at a premeditated duel have been held guilty of murder, nor will the justice of the English Law be defeated where a person appears to have intended a less hurt than death, if that hurt arose from a desire of revenge in cool blood; for if the person dies of the injury it will be murder. So, also, where the revenge of a sudden provocation is executed in a cruel manner, though without intention of death, yet if it happen, it is murder."
"We come now to those kinds of killing in which the Law, from the second method of reasoning we have spoken of, implies malice, and into which slaying of others, those unfortunate persons of whom we speak in the following sheets were mostly led either through the violence of their passions, or through the necessity into which they are often drawn by the commission of thefts and other crimes. Thus, were a person to kill another in doing a felony, though it be by accident, or where a person fires at one who resists his robbing him and by such firing kills another against whom he had no design, yet from the evil intention of the first act, he becomes liable for all its consequences, and the fact, by an implication of malice, will be adjudged murder. Nay, though there be no design of committing felony, but only of breaking the peace, yet if a man be slain in the tumult they will all be guilty of murder, because their first act was a deliberate breach of the Law. There is yet another manner of killing which the Law punishes with the utmost severity, which is resisting an officer, civil or criminal, in the execution of his office (arresting a person) so that he be slain, yet though he did not produce his warrant, the offence will be adjudged murder. And if persons who design no mischief at all, do unadvisedly commit any idle wanton act which cannot but be attended with manifest danger, such as riding with a horse known to kick amongst a crowd of people, merely to divert oneself by putting them in a fright, and by such riding a death ensues, there such a person will be judged guilty of murder. Yet some offences there are of so transcendent a cruelty that the Law hath thought fit to difference them from the other murders, and these are of three sorts, viz., where a servant kills his master; where a wife kills her husband; where an ecclesiastical man kills his prelate to whom he owes obedience. In all these cases the Law makes the crimes Petit Treason."
"From crimes committed against the lives of men we descend next to offences against their goods, in which, that we may be the more clearly understood, we shall begin with the lowest kind of thefts. The Law calls it larceny where there is felonious and fraudulent taking and carrying away the mere personal goods of another, so long as it be neither from his person nor out of his house. If the value of such goods be under twelvepence, then it is called petty larceny, and is punishable only by whipping or other corporal punishments; but if they exceed that value, then it is grand larceny, and is punishable with death, where benefit of clergy is not allowed."
"There are a multitude of offences contained under the general title of grand larceny, and, therefore, as I intend only to give my readers such a general idea of Crown Law as may serve to render the following pages more intelligible, so I shall dwell on such particulars as are more especially useful in that respect, and leave the perfect knowledge of the pleas of the Crown to be attained by the study of the several books which treat of them directly and fully. There was until the reign of King William, a doubt whether a lodger who stole the furniture of his lodgings were indictable as a felon, inasmuch as he had a special property in the goods, and was to pay the greater rent in consideration of them. To clear this, a Statute was made in the afore-mentioned reign, by which it is declared larceny and felony for any person to steal, embezzle, or purloin any chattel or furniture which by contract he was to have the use of in lodging; and by a Statute made in the reign of Henry VIII, it is enacted that all servants being of the age of eighteen years, and not apprentices, to whom goods and chattels shall be delivered by their masters or mistresses for them to keep, if they shall go away with, or shall defraud or embezzle any part of such goods or chattels, to the value of forty shillings or upwards, then such false and fraudulent act be deemed and adjudged felony."
"But besides simple larceny, which is divided into grand and petty, there is a mixed larceny which has a greater degree of guilt in it, as being a taking from the person of a man or from his house. Larceny from the person of a man either puts him in fear, and then it is a robbery, or does not put him in fear, and then it is a larceny from the person, and of this we shall speak first. It is either committed without a man's knowledge, and in such a case it is excluded from benefit of clergy, or it is openly done before the person's face, and then it is within the benefit of clergy, unless it be in a dwelling-house and to the value of forty shillings, in which case benefit is taken away by an Act made in the reign of the late Queen. Larceny from the house is at this day in several cases excluded from benefit of clergy, but in others it is allowed."
"Robbery is the taking away violently and feloniously the goods or money from the person of a man, putting him in fear; and this taking is not only with the robber's own hands, but if he compel, by the terror of his assault, the person whom he robs to give it himself, or bind him by such terrible oaths, that afterwards in conscience he thinks himself obliged to give it, is a taking within the Law, and cannot be purged from any delivery afterwards. Yea, where there is a gang of several persons, only one of which robs, they are all guilty as to the circumstance of putting in fear, wherever a person attacks another with circumstances of terror, as though fear oblige him to part with his money though it be without weapons drawn, and the person taking it pretend to receive it as an alms. And in respect of punishment, though judgment of death cannot be given in any larceny whatsoever, unless the goods taken exceed twelve pence in value, yet in robbery such judgment is given, let the value of the goods be ever so small."
"As to crimes committed against the habitations of men, there are two kinds, viz., burglary and arson."
"Burglary is a felony at Common Law, and consists in breaking and entering the mansion house of another in the night time with an intent of committing a felony therein, whether that intention be executed or not. Here, from the best opinions, is to be understood such a degree of darkness as hinders a man's countenance from being discerned. The breaking and entering are points essential to be proved in order to make any fact burglary; the place in which it is committed must be a dwelling house, and the breaking and entering such a dwelling house must be an intent of committing felony, and not a trespass; and this much I think is sufficient to define the nature of this crime, which notwithstanding the many examples which have been made of it, is still too much practised. As to arson, by which the Law understand maliciously and voluntarily burning the house of another by night or by day; to make a man guilty of this it must appear that he did it voluntarily and of malice aforethought."
"Besides these, there are several other felonies which are made so by Statute, such as rapes committed on women by force, and against their will. This offence was anciently punished by putting out the eyes and cutting off the testicles of the offenders; it was afterwards made a felony, and by a statute in Queen Elizabeth's reign, excluded from benefit of clergy. By an Act made in the reign of King Henry the Seventh, taking any woman (whether maid, wife or widow) having any substance, or being heir apparent to her ancestors, for the lucre of such substance, and either to marry or defile the said woman against her will, then such persons and all those procuring or abetting them in the said violence, shall be guilty of felony, from which, by another Act in Queen Elizabeth's reign, benefit of clergy is taken. Also by an Act in the reign of King James the First, any person marrying, their former husband or wife being then alive, such persons shall be deemed guilty of felony, but benefit of clergy is yet allowed for this offence."
"As it often happens that boisterous and unruly people, either in frays or out of revenge, do very great injuries unto others, yet without taking away their lives, in such a case the Law adjudges the offender who commits a mayhem to the severest penalties. The true definition of a mayhem is such a hurt whereby a man is rendered less able in fighting, so that cutting off or disabling a man's hand, striking out his eye, or foretooth, were mayhems at Common Law. But by the Statute of King Charles the Second, if any person or persons, with malice aforethought, by lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, or cut off the nose or lip of any subject of his Majesty, with an intention of maiming or disfiguring, then the person so offending, their counsellors, aiders and abetters, privy to the offence, shall suffer death, as in cases of felony, without benefit of clergy; which Act is commonly called the Coventry Act, because it was occasioned by the slitting of the nose of a gentleman of that name, for a speech made by him in Parliament.[1]"
"As nothing is of greater consequence to the commonwealth than public credit, so the Legislature hath thought fit, by the highest punishments, to deter persons from committing such facts for the lucre of gain, as might injure the credit of the nation. For this purpose, an Act was made in the reign of the late King William, by which forging or counterfeiting the common seal of the Governor and Company of the Bank of England, or of any sealed bank-bill given out in the name of the said Governor and Company for the payment of any sum of money, or of any bank-note whatsoever, signed by the said Governor and Company of the Bank of England, or altering or raising any bank-bill, or note of any sort, is declared to be felony, without benefit of clergy. Upon this Statute there have been several convictions, and it is hoped men are pretty well cured of committing this crime, by that care those in the direction of the Bank have always taken to bring offenders of this kind to justice."
"By an Act also passed in the reign of King William, persons who counterfeit any stamp which by its mark relates to the Revenue, shall be guilty of felony without benefit of clergy, and upon this also there have been some executions."
"But as the public companies established in this kingdom have often occasion to borrow money under their common seal, which bonds, so sealed, are transferable and pass currently from hand to hand as ready money, so for the greater security of the subject the counterfeiting the common seal of the South Sea Company, or altering any bond or obligation of the said company, is rendered felony without benefit of clergy. Some other statutes of the same nature in respect to lottery tickets, etc., have been made to create felonies of the counterfeiting thereof, but of these and some other later Statutes, I forbear mentioning here, because I have spoken particularly of them in the cases where persons have been punished for transgressing them."
"As I have already exceeded the bounds which I at first intended should have restrained my Preface, so I forbear lengthening it in speaking of lesser crimes, few of which concern the persons whose lives are to be found in the following volume. Therefore I shall conclude here, only putting my readers once more in mind that by this work the intent of the Law, in punishing malefactors, is more perfectly fulfilled, since the example of their deaths is transmitted in a proper light to posterity."
FOOTNOTES:
[1] Sir John Coventry, M. P. for Weymouth, in the course of a debate on a proposed levy on playhouses, asked "whether did the king's pleasure lie among the men or the women that acted?" This open allusion to Charles's relations with Nell Gwynn and Moll Davies enraged the Court party, and on Dec. 21, 1670, as Sir John was going to his house in Suffolk Street, he was waylaid by a brutal gang under Sir Thomas Sandys, dragged from his carriage, and his nose slit to the bone. This outrage caused great indignation, and the Coventry Act mentioned in the text was passed, 22 & 23 Car. II. The perpetrators of the deed escaped.
PREFACE TO VOLUME 2
"In the Preface to my former volume I endeavoured to give my readers some idea of the English Crown Law, in order to shew how consistent it was with right reason, how perfectly just, and at the same time how full of mercy. In this, I intend to pursue the thread of that discourse, and explain the methods by which Justice in criminal cases is to be sought, and the means afforded by our Law to accuse the guilty and to prevent punishment from falling on the innocent. In order to do this the more regularly, it is fit we begin with the apprehension of offenders, and shew the care of the Legislature in that respect."
"In sudden injuries, such as assaults on the highway, attempts to murder or to commit any felony whatsoever, there is no necessity for any legal officer to secure the person who is guilty, for every private man hath sufficient authority to seize and bring such criminal, either to a constable or to a Justice of the Peace, in order to have the fact clearly examined and such course taken therein as may conduce to the impartial distribution of Justice. And because men are apt to be scrupulous of interesting themselves in matters which do not immediately concern either their persons or their properties, so the Law hath provided punishments for those who, for fear of risking their private safety or advantage, suffer those who offend against the public to escape unpunished; hence hundreds are liable to be sued for suffering a robber to escape, and that method of pursuit which is called hue and cry is permitted, if no probable way may be left for felons to escape. Now a hue and cry is raised thus: the person robbed, for example, goes to the constable of the next town, tells him the case, described the felon, and the way he went. Whereupon the constable, be it day or night, is to take the assistance of those in his own town, and pursue him according to those directions immediately, at the same time sending with the utmost expedition to the neighbouring towns, who are to make like pursuit, and to send like notice until the felon be found."
"So desirous is our Law of bringing offenders to Justice, and of preserving the roads free from being infested with these vermin. For the better effecting of this, besides those means prescribed by the customs of our ancestors, of later times rewards have been given to such as hazarded their own persons in bringing offenders to justice, and of these, as far as they are settled by Acts of Parliament and thereby rendered certain and perpetual, I shall speak here; though not of those given by proclamation, because they being only for a stated time, people must hereafter have been misled by our account, when that time is expired."
"Highwaymen becoming, some time after the Revolution, exceedingly bold and troublesome, by an Act made in the reign of William and Mary, a reward of forty pounds is given for apprehending any one in England or Wales, and prosecuting him so as he be convicted; which forty pounds is to be paid by the sheriff on a certificate of the judge or justices before whom such a felon was convicted. And in case a person shall be killed in endeavouring to apprehend or making pursuit after such robbers, the said forty pounds shall be paid to the executors or administrators of such persons upon the like certificate. Moreover, every person who shall take, apprehend, or convict such a person, shall have as a reward the horse, furniture, arms, money or other goods of such robber as shall be taken with him, the right or title of his Majesty's bodies politic or corporate, lords of manors, or persons lending or letting the same to such robber notwithstanding; excepting only the right of those from whom such horses, furniture, arms, money, or goods were before feloniously taken."
"A like reward of forty pounds was, by another Act in the same reign, given to such as shall apprehend any person convicted of any capital crime relating to the coin of this land."
"By an Act also made in the reign of the late King William, persons who apprehend and prosecute to conviction any who feloniously steal goods to the value of five shillings, out of any house, shop, warehouse, coach-house or stable, or shall assist, hire or command any person to commit such offence; then such person so taking as aforesaid, shall have a certificate gratis from the Judge or Justices, expressing the parish or place where such felony was committed; which certificate shall be capable of being once assigned over, and shall exempt its proprietor or assignee from all parish and ward offices, in the parish or ward wherein the felony was committed."
"By an Act made in the fifth year of the late Queen, persons apprehending one guilty of burglary, or of feloniously breaking into a house in the day-time, and prosecuting to conviction, shall receive over and above the certificate before mentioned, the sum of forty pounds, as in the case of apprehending an Highwayman."
"By an Act passed in the sixth year of the late King, whoever shall discover, apprehend, or prosecute to conviction without benefit of clergy, any person for taking money or other reward, directly or indirectly, to help persons to their stolen goods (such persons not having apprehended the felon who stole the same, and brought him to trial, and given evidence against him) shall be entitled to a reward of forty pounds for every offender so convicted, and shall have the like certificate, and like payment without fee, as persons may be entitled to for apprehending highwaymen."
"The next point after offenders are once apprehended, is to carry them before a proper magistrate, viz., a Justice of the Peace, and this leads us to say something of the nature and authority of that office. My Lord Chancellor, or Lord Keeper of the Great Seal, the Lord High Steward of England, the Lord Marshal, and the Lord High Constable, each of the Justices of the King's Bench, and as some say, the Lord High Treasurer of England, have, as incidental to their offices, a general authority to keep the peace throughout the realm, and to award process for their surety thereof, and to take recognizances for it. The Master of the Rolls has also a like power, either incident to his office, or at least by prescription. As to the ordinary constructors or Justices of the Peace, they are constituted by the King's Commission, which is at present granted on the same form as was settled by the Judges in the 33rd Year of Queen Elizabeth, by which they are appointed and assigned every one of then jointly and separately to keep the King's peace in such a county, and cause to be kept all statutes made for the good of the peace and the quiet government of the Kingdom, as well within liberties, as without, and to punish all those who shall offend against the said statutes, and to cause all those to come before them, or any of them, who threaten any people as to the burning their houses, in order to compel them to be kept in prison until they shall find it. As to the other powers committed to these justices, it would be too long for me to explain them, and therefore after this general Act, I shall go on to take notice of the manner in which the person accused is treated, when brought before them."
"First the Justice of Peace examines as carefully as he can into the nature of the offence, and the weight there is of evidence to persuade him of the just ground there is for accusing the person before him; and after he has thoroughly considered this, if the thing appear frivolous or ill-grounded, he may discharge the person, or if he think the circumstances strong enough to require it, he may take the bail of the party accused, or if the nature of the crime be more heinous, and the proof direct and clear, he is bound by an instrument under his hand and seal called a" Mittimus, "to commit the offender to safe custody until he is discharged according to Law. In carrying to prison for any crime whatsoever, if the party so carried escape himself, or if he be rescued by others, he and they are guilty of a very high misdemeanor, and in some cases, those who assist in making the rescue may be guilty of felony or high treason. But if a prisoner be once committed to gaol for felony, and afterwards break that prison and escape, such breach of prison is felony, by the Statute" De Frangentibus Prisonam, "and shall be tried for the same as in other cases of felony, and suffer on conviction. My readers will find mention made of a case of this nature in respect to one Roger Johnson, who some years ago was tried for breaking the prison of Newgate, while he remained a prisoner there under a charge of felony, and making his escape; but so tender is the English law that when there appeared a probability that one Fisher (not then taken) broke down the wall of the prison and that Johnson took advantage of that hole and made his escape, he was found not guilty, for want of due proof that he actually did break that hole through which he escaped."
"The prisoner being in safe custody, a bill is next to be preferred to the grand jury of the county, in which the nature of the crime is properly set forth, and after hearing the evidence brought by the prosecutor to support the charge, they return the bill to the Court, marked" Billa Vera "or" Ignoramus. "In the first case the prisoner is required to be tried by the petit jury of twelve, and to abide their verdict; in case of the latter, he is to be discharged and freed from that prosecution. But the grand jury must find or not find the bill entire, for a" Billa Vera "to one part and an" Ignoramus "to another renders the whole proceeding void and is of the same use to the prisoner as if they had returned an" Ignoramus "upon the whole."
"Many without knowing the Law have taken occasion to be very free with its precedents, and to treat them as things written in barbarous Latin, in which an unreasonable, if not ridiculous nicety is sometimes required. But when this comes to be thoroughly examined, we shall find that their proceedings are exactly conformable to reason, for if care and circumspection be necessary in deeds and writings relating to civil affairs, ought it not a fortiori to be more so where the life, liberty, reputation and everything that is dear and valuable to the subject is at stake? Therefore, since there are technical words in all sciences, surely the Law is not to be blamed for preserving certain words to which they have affixed particular and determined meanings for the expressing of such crimes as are made more or less culpable by the Legislature. Thus" Murdravit "is absolutely necessary in an indictment charging the prisoner with a murder;" Caepit "is the term made use of in indictments of larceny." Mayhemaivit "expresses the fact charged in an indictment of maim;" Felonice "is absolutely necessary in all indictments of felony of what kind soever;" Burglariter "is the Latin word made use of to express that breaking which from particular circumstances our Law has called burglary, and appointed certain punishment for those who are guilty thereof." Proditorie "expresses the Act in indictments of treason, and even if these are not Latin words, justified by the usage of Roman authors, the certainty which they give to those charges in which they are used, and which could not be so well expressed by circumlocutions, is a full answer to that objection, since the proceedings before a Court aim not at elegancy, but at Justice. But let us now go on to the next step taken to bring the offenders to Judgment."
"The bill having been found by the grand jury, the prisoner is brought into the Court where he is to be tried, and set to the bar in the presence of the judges who are to try him. Then he is usually commanded to hold up his hand, but this being only a ceremony to make the person known to the court it may be omitted, or the person indicted saying" I am here, "will answer the same end. Then the proper officer reads the indictment which has been found against him, in English, and when he hath so done, he demands of the prisoner whether he be guilty or not guilty of the fact alleged against him, to which the prisoner answers as he thinks fit, and this answer is styled his plea. That tenderness which the English Law on all occasions expresses towards those who are to be brought to answer for crimes alleged against them, requires that at his arraignment, the prisoner be totally free from any pain or duress which may disturb his thought and hinder his liberty of pleading as he thinks fit, and for this reason, even in cases of high treason, irons are taken off during the time the prisoner is at the bar, where he stands without any marks of contumely whatsoever."
"But in case the prisoner absolutely refuses to answer, or in an impertinent manner delay or trifle with the court, then he is deemed a mute; but if he speaks not at all, nor gives any sign by which the Court shall be satisfied that he is able to speak, then an inquest of officers, that is of twelve persons who happen to be by, are to enquire whether his standing mute arises from his contempt of the Court, or be really an infirmity under which he labours from the hands of God. If it be found the latter, then the Court, as counsel for the prisoner, shall hear the evidence with relation to the fact, and proceed therein as if the prisoner had pleaded not guilty; but if, on the contrary, the Court or the inquest shall be satisfied that the prisoner remains a mute only from obstinacy, then in some cases judgment shall be awarded against him as if he had pleaded or were found guilty, and in others he shall be remitted to his penance, that is to suffer what the Law calls" Peine forte et dure, "which is pressing, of which the readers will find an account in the subsequent life of Burnworth", alias "Frazier; and therefore I shall not treat further of it here."
"If, from conviction of his own guilt and a consciousness that it may be fully proved against him, the prisoner plead guilty to the indictment, it is considered as the highest species of conviction, and as soon as it is entered on record the Court proceeds to judgment without further proceedings on the indictments. But if the prisoner plead not guilty, and put himself for trial upon his country, then a jury of twelve men are to pass upon the defendant, and upon their verdict he is either to be acquitted or convicted."
"And with respect to this jury, the English Law appears again more equitable than perhaps any other in the world, for in this case as the jury comes severally to the Book to be sworn, to try impartially between the King and the prisoner of the bar, according to the evidence that is given upon the indictment, the prisoner is even then at liberty to except against, or as the law term it, to challenge, twenty of the jury peremptorily, and as many more as he thinks fit on showing just cause. So also, if the prisoner be an alien, the jury are to be half aliens and half English. So tender is our constitution, not only of the lives of its natural born subjects, but, also of those who put themselves under its protection, that it has taken every precaution which the wit of man could devise to prevent prejudice, partiality, or corruption from mingling in any degree with the sentences pronounced upon offenders, or in the proceedings upon which they are founded."
"Last of all we are to speak of the evidence or testimony which is to be given for or against the prisoner at the time of his trial. And first with respect to the evidence offered for the Crown; if it shall appear that the person swearing shall gain any great and evident advantage by the event of the trial in which he swears, he shall not be admitted as a good witness against the prisoner. Thus in the case of Rhodes, tried some years ago for forging letters of attorney for transferring South Sea Stock belonging to one Mr. Heysham, the prosecutor, Mr. Heysham, was not admitted to swear himself against the prisoner because in case of conviction six thousand pounds stock must have replaced to his account. But to this, though a general rule, there are some exceptions on which the compass of this discourse will not permit us to dwell. It is also a rule that a husband or wife cannot be admitted to testify against the prisoner, but to this also there are some exceptions, as in the Lord Audley's case,[2] where he was charged with holding his lady until his servant committed a rape upon her by his command. Also in marriages contracted by force against the form of the Statute; in that case it is provided that the woman, though a wife, may be admitted as evidence, as also in some other cases which we have not room to mention."
"Persons convicted of perjury, forgery, etc., are not to be admitted as legal witnesses, but that the record of their contrition must be produced at the time the objection is made, for the Court mil take no notice of hearsay and common fame in such respect. An infidel, also, that is one who believes neither the Old nor New Testament, cannot be a witness, and some other disabilities there are which being uncommon, we shall not dwell upon here Yet it is necessary to take notice that whatever is offered as proof against the defendant, shall be heard openly before him, that he may have an opportunity of falsifying it, if he be able; and as in all cases, except high treason, no council is permitted to the prisoner except in matters of law, because every man is supposed to be capable of defending himself as to matters of fact, yet the Court is always council for the prisoner and never fails of instructing and informing him of whatever may conduce to his benefit or advantage; and if any difficult points of Law arise, council are assigned him, and are permitted to argue in his behalf with the same freedom that those do who are appointed by the Crown."
"From this succinct account of the method in use in England, of doing justice in criminal cases, I flatter myself my readers will very clearly see how valuable those privileges are which we enjoy as Englishmen; how equitable the proceedings of our Courts of Justice; and how well constructed every part of our constitution is for the preservation of the lives and liberties of its subjects. If there remained room for us to compare the judicious proceedings in use here with those slight, rigorous and summary methods which are practised in other countries, the value of these blessings which we enjoy would be considerably enhanced. But as this Preface already exceeds its intended length, we must refer this to a more proper opportunity, and conclude with putting our readers in mind that by the careful perusal of this and the Preface to the First Volume, they will have competent notion of the Crown Law, the reasons on which it is founded, the method in which it is prosecuted, and the judgments on criminals which are inflicted thereby; matters highly useful in themselves, as well as absolutely necessary to be known, in order to a proper understanding of the following pages."
FOOTNOTES:
[2] This was Mervyn, Lord Audley, 2nd Earl of Castlehaven, a man of loathsome profligacy, who was tried by his peers on charges of unnatural offences, and executed, in 1631.