A Brief History of the Tudor Age (13 page)

The crimes of murder and theft, and other felonies, were punished by death by hanging, the convicted criminal being hanged on a gallows and left to hang until he was dead; but after a rebellion,
rebels were sometimes hanged in chains, being hung on a gibbet by chains under their armpits and left hanging there until they died of hunger. Other crimes were punished by imprisonment in Newgate,
the Fleet, the Counter and the Marshalsea in London and Southwark, and in the various county jails. Short terms of imprisonment were often imposed, but it was very unusual for anyone to be
sentenced to a fixed term of imprisonment of longer than a year. Political offenders were usually sentenced to imprisonment during the King’s pleasure, and could then be held in the Tower,
the Fleet or the Marshalsea indefinitely, or be released when it pleased the King and the Council.

Another common form of punishment was a whipping. Offenders were sometimes sentenced to be whipped through the streets when tied behind a slow-moving cart – ‘whipped at the
cart-arse’
⁴
– usually on market days, when there would be more people in the town to witness the punishment. Offenders were also
placed in the stocks, where they were forced to sit fastened by the legs, or to stand in the pillory fastened by the arms. In the stocks or the pillory, they were surrounded by crowds who pelted
them with eggs, stones and offal, while they sat or stood there, a fixed and defenceless target.

Sentences of mutilation were also imposed. The criminal was sentenced to have an ear nailed to the pillory, or to have the ear cut off. This was usually carried out in the market town on market
day. Sometimes, as an aggravated punishment, the criminal was sentenced to have both ears cut off, often losing the second ear a week or a month after the other, on the next market day, so as to
prolong and renew the pain of the punishment.

Various Acts of Parliament were passed, providing that certain offences were to be punished by cutting off the offender’s hand. In order to prevent any violence at court, which might
endanger the King’s person, an Act provided that anyone who shed blood within the area of the court should lose his hand. In 1541, two gentlemen of the King’s household quarrelled
during a game of tennis in the tennis court at Hampton Court, and one of them, Sir Edmund Knyvett, drew his sword and wounded the other in his anger. He was sentenced to have his hand cut off, as
usual in public. But at the last moment, when the King’s master cook was there with the knife, the Sergeant of the Scullery with the mallet, and the King’s master surgeon with the
searing iron and the bandages, word arrived that the King had pardoned the offender.

There was no pardon for the Puritan propagandist, John Stubbs, when he wrote a book in 1579 denouncing the project for Elizabeth I to marry the King of France’s brother, the Duke of Anjou.
Elizabeth was very angry, for she considered it seditious for one of her subjects to meddle with the question of her
marriage or her foreign policy. Stubbs was convicted under
an Act which had been passed in Mary’s reign in 1555, which provided that anyone who published a writing which vilified the Queen should have his hand cut off. The sentence was carried out
before a disapproving crowd in Palace Yard in Westminster. After losing his right hand, Stubbs took off his hat with his left hand and cried ‘God save the Queen!’ before he fainted. He
was also sentenced to be imprisoned during the Queen’s pleasure, and was held for more than a year in the Tower before he was released.

The Privy Council itself dealt with political offenders, and exercised judicial as well as executive powers. People suspected of sedition were summoned to appear before the Council. Occasionally
the suspect was arrested and brought to the Council by men-at-arms, but much more often he was merely ordered to appear on a fixed day, and came freely of his own accord, out of the respect for the
royal authority which was so deeply ingrained in the ordinary Englishman during the Tudor Age; though in sixteenth-century Scotland a person summoned to appear before the ‘Secret
Council’ (Privy Council) of the King of Scots would almost certainly have refused to come, and would have taken refuge in the territory of some powerful lord where the government would not
venture to pursue him.

The Privy Council never imposed the death penalty; if the King wished the offender to be put to death, he had to be tried and convicted by a special commission, or by a jury in the King’s
common law courts. But the Council, after hearing what the accused person had to say, could sentence him to lose an ear in the pillory, or to imprisonment during the King’s pleasure.
Sometimes he was sentenced to be held under house arrest, either in his own house or in the house of some member of the Council, or of some politically reliable member of his own family. In the
reign of Edward VI, the Catholic bishops, who refused to submit and accept the Protestant doctrines and Church services prescribed by the Book of Common Prayer, were sometimes ordered to be
confined as prisoners in the household of one of the
Protestant bishops, who would argue with the recalcitrant bishop during his sojourn there and put him under moral pressure
to submit. Sometimes the suspect, after the hearing before the Council, was bound over to be of good behaviour in some very large sum of money – £10,000, or an amount equal to most of
his property – which he would forfeit to the King if he broke the conditions of his bond and offended against the royal authority.

An important part in the judicial system was the use of torture to elicit information from a suspected prisoner. Torture was more widely practised in England during the Tudor Age than in any
other period before or since. It was not used in the ordinary criminal procedure of the English common law; for although painful punishments, such as hanging, drawing and quartering and mutilation,
were imposed by the common law judges, there was no place for the torture of suspects in the English system of trial by witnesses and verdicts by juries, unlike the procedure under the civil law of
continental Europe and Scotland, with the inquisitorial system of direct questioning of the defendant. The English common lawyers always frowned on the use of torture, though probably more from
their professional dislike of the Roman law than for humanitarian reasons.

But the canonists of the Church and the ‘civilians’ in the King’s government, with their training in the Roman civil law of the Continent and the canon law of the Church,
considered torture to be a proper legal procedure in certain circumstances. Torture came into use in cases of high treason and sedition about the middle of the fifteenth century, and became much
more common under Henry VIII, Mary and Elizabeth I. It ceased to be used in England early in the seventeenth century, and was declared illegal by Parliament in 1640, though it continued in Scotland
until 1708.

Unlike those countries in the twentieth century where torture is used in interrogation by the police, torture in the Tudor Age was openly acknowledged and legal, and the circumstances in which
it could be used were strictly prescribed. It could only be
inflicted under a warrant signed by the King or the Privy Council. The practice was only to torture a prisoner as a
last resort. Although other forms of torture were occasionally used, by far the most common was the rack; the prisoner was fastened to a rack, which was extended by pulleys so that his arms and
legs were painfully extended and dislocated, often inflicting substantial physical injury. The theory behind the use of torture was that if the prisoner was innocent, God would give him the
strength to endure the pain, but that if he were guilty, it would force him to confess and speak the truth which he was obstinately refusing to reveal.

The practice was to question the prisoner several times without ‘the pains’. If he refused to disclose important matters which he was suspected of concealing, he was taken to the
torture chamber and ‘shown a sight of the instruments’ of torture, and then again questioned without ‘the pains’. If he still remained obdurate, the King or the Privy
Council signed a warrant authorizing the application of torture, and he was questioned ‘under the pains’, usually in the presence of a member of the Privy Council.

Noblemen and noble ladies, and the members of the royal family, had the privilege of being exempt from interrogation under torture; but gentlemen and their wives were sometimes tortured. When
Mary Queen of Scots was imprisoned in England, she was suspected of being involved in the plot of the Italian banker, Ridolfi, to assassinate Elizabeth I. Mary’s representative in London, the
Bishop of Ross, to whom she had accorded the rank of her ambassador, was arrested by Elizabeth’s government and accused of complicity in the plot. As he refused to reveal the information
which the government required, he was examined by the Privy Council and threatened with interrogation under torture. He claimed that, as Mary’s ambassador, he had diplomatic immunity from
torture; but Lord Burghley and the Privy Councillors denied that he was a properly accredited ambassador, or that he had immunity from being questioned under the pains. The matter was not put to
the test, because the
Bishop of Ross ultimately gave the information which was required of him without being tortured.

The severity of the criminal law was considerably modified by the doctrines of sanctuary and benefit of clergy, which had been established during the Middle Ages, when the Church was at the
height of its power. A fugitive from justice who succeeded in entering a church or monastery was safe from arrest as long as he stayed there, for the authorities were not permitted to enter the
church to seize him; and although there were a few notorious cases in which the right of sanctuary was violated by the pursuers, it was nearly always respected. Some important abbeys and cathedral
churches were given additional privileges of sanctuary; at Beverley and Hexham, the area of the sanctuary was extended for one mile from the abbey in every direction, and the limits of the
sanctuary were marked by boundary stones.

A criminal who had reached the safety of sanctuary was allowed to remain there for forty days. He was then compelled to leave the sanctuary and go before a JP and confess his offence; but he was
given a specified number of days in which to go unmolested to the nearest port and leave the kingdom, after he had promised not to return to England without the King’s permission.

Banishing criminals from England proved to be unsatisfactory. They were not welcome abroad, and foreign governments adopted the same policy which the English Privy Council did with regard to
gipsies and foreign criminals who came to England, ordering them to leave the realm within a given number of weeks on pain of death. English criminals who had gone abroad from sanctuary had no
choice but to break their oaths and return secretly to England without the King’s leave, landing at some unguarded place on the coast and continuing their life of crime. So the law was
changed; instead of banishing the fugitives who were in sanctuary, they were allowed to remain there permanently under the supervision of a ‘Governor of the Sanctuary’.

Benefit of clergy was a privilege won by the Church in the thirteenth century which established that members of the clergy
who committed a felony should not be hanged, but
suffer some lesser punishment; it was extended to deacons and any person remotely connected with the Church, and to anyone who could read; but it did not apply to women, not even to nuns, as women
could not be clerks in holy orders. When literacy became more widespread in the sixteenth century after the introduction of printing, many laymen were able to take advantage of benefit of clergy.
After the Bible in English had been printed and widely circulated in Elizabeth I’s reign, the courts adopted the practice of inviting a convicted felon to read the first verse of the 51st
Psalm: ‘Have mercy upon me, O God, according to thy loving kindness; according unto the multitude of thy tender mercies, blot out my transgressions.’ This became known as the
‘neck verse’, because any convicted felon who could read it, or who had been given the useful tip to learn it by heart and could therefore pretend to read it, was able to save his neck
and avoid being hanged by claiming benefit of clergy.

The right of sanctuary and benefit of clergy were repeatedly modified during the Tudor Age, but surprisingly they were not completely abolished, and survived the suppression of the monasteries
and the increased severity of the criminal law under Henry VIII. A series of statutes abolished the privileges in the case of the more serious offences. In Henry VII’s reign, Perkin Warbeck
was able on two occasions to escape being executed as a traitor by taking sanctuary; but by the end of the Tudor Age, sanctuary and benefit of clergy had been abolished in cases of high treason and
all the more serious crimes, and in most of the new felonies created by Acts of Parliament. An Act of 1489 enacted that a layman who claimed benefit of clergy should be branded on the thumb with
the letter M in cases of murder and the letter T in cases of theft and other cases, and that he could not claim the privilege for a second offence. This was extended to priests by a statute of
1576.

The law about sanctuary was extensively altered by an Act of 1540, which was passed after the final suppression of the greater, as well as the lesser, monasteries; but it shows the popularity of
the sanctuary system that Henry VIII did not take this opportunity of abolishing sanctuary altogether. Every fugitive in sanctuary was required at the end of forty days to go to
the nearest of the eight sanctuary towns which were established in Westminster, Wells, Manchester, Northampton, Norwich, York, Derby and Launceston; but there were never to be more than twenty
criminals in any sanctuary town, and if the nearest one was full, the criminal was to be sent on to the next one. If he refused to go there, he was to lose the right to sanctuary. There was to be
no sanctuary for anyone accused of murder, rape, burglary, robbery in any house in circumstances which put an inmate of the house in fear of his life; of arson of houses or of barns filled with
corn; or of robberies of churches or any hallowed place; and it had already been abolished for high and petty treason.