Just one historical question I have had for some time now. Why wasn’t the punishment “hanged, drawn and quartered” considered “cruel and unusual” punishment in England, even after the 1689 English Bill of Rights?
Here is the Wikipedia article on the English Bill of Rights (1689).
Here is Cecil’s article on drawing and quartering.
(Just so you know, the article on D & Q comes with a heavy TMI alert. It is VERY graphic [if you’re sensitive to that type of thing].)
So you can see my confusion.
BTW, this of course is a historical question. But this question has modern implications too. U.S. judges who believe in the judicial philosophy of “original intent” believe interpretation of the U.S. Constitution should go no further than what the founders originally meant the words to have. Yet, the founders supported drawing and quartering too. I’m not kidding. In fact, the 5th amendment even says, no one shall be twice put in jeopardy of “life or limb”. That’s what “life or limb” means, in case you didn’t know.
Also, if you are a lawyer, or have a law dictionary in any event, the term is usually under the heading "hanged, drawn and quartered", if you want to look it up (at your own risk, of course).
I patiently await your replies:)
That punishment only affected a handful of people a century ( High Treason ); considering the continuing horrible state of prisons — which arguably got worse in different ways with each set of reforms ( eg: old squalor versus the Silent System ) — and the continued use of whipping in both countries ( judicial flogging last used 1952 in America ), and even very rarely burning at the stake now and then ( poisoners/witches: or slave revolts in the Americas ), maybe it seemed minor.
As with normal executions (and before Marwood’s invention of the Long Drop, which also had drawbacks such as decapitations — hanging itself took about 20 minutes ) for any form one could usually bribe the executioner for a quick release, even for hanging, drawing etc…
The phrase is cruel and unusual, not cruel or unusual so while drawing and quartering was cruel it was not unusual. What the english bill of rights was trying to prohibit was the star chamber where judges got to decide what was a crime and what was the punishment without anyone knowing what it was beforehand. Thus the punishment handed out was cruel not because it involved cruelty in execution but because the accused did not know what it was going to be before it was handed down.
Since drawing and quartering was the statutory punishment for treason, everyone understand that is was the usual punishment.
Also, I always thought they were quartered while they were alive, but Cecil’s article says they were beheaded first. If that’s the case, the death was neither cruel nor unusual. The burning entrails and hanging until almost dead is a cruel and unusual addition, but is there any evidence that was common after the medieval era? Wiki has this to say:
So it seems, at least in the 19th century, that the beheading and quartering were merely symbolic, and the traitors were just dragged and hanged.
The condemned weren’t always beheaded first, but even so few would’ve survived to the quartering stage. For modesty reasons women convicted of treason were burnt at the stake instead (drawing & quartering involved stripping the condemned naked), and if the executioner was properly bribed (or the authorities decided to show mercy) she’d be strangled to death first.
The disagreement is rather over what it was about the punishments inflicted on Oates that were so ‘cruel and unusual’. He had been fined 2,000 marks, imprisoned for life, pilloried four times a year and defrocked as a clergyman. Lawyers still argue as to whether it was the excessiveness of the punishments, the lack of precedents or some other factor that made them so offensive.
But it could also be argued that this had more to do with politics anyway. Oates had been one of James II’s most high-profile victims, so it made sense for James’s enemies to condemn Oates’s treatment as soon as they got the chance. Calling those particular punishments ‘cruel and unusual’ might have been little more than a useful piece of political rhetoric.
I’m not so sure “life or limb” specifically means “drawn and quartered”. I would guess the founders were more likely thinking about punishments such as losing a hand for theft, or a foot for escaping jail. Losing your nose was a punishment in England for being a heretic, if I recall correctly, and perhaps some US States had such punishments on the books at the time. There’s lots of ways an accused person could be officially deprived of their life or a limb that aren’t specifically being drawn and quartered. Besides, I don’t think having your corpse cut into pieces after you die is the same thing as “losing a limb”.
Perhaps; however Thomas Jefferson’s famous Bill for Proportioning Crimes and Punishment [ Virginia 1778 ] proposed stuff — he spent a lot of time thinking about making the punishment fit the crime and all that jazz. However the Virginia House was too reactionary and only took half of these proposals — probably thinking to themselves: “Fucking Weirdo.”.
For rendering crimes and punishments therefore more proportionate to each other: Be it enacted by the General assembly that no crime shall be henceforth punished by deprivation of life or limb except those hereinafter ordained to be so punished.
In other words: you’re safe from being maimed except when you aren’t.
*
If a man do levy war against the Commonwealth or be adherent to the enemies of the commonwealth giving to them aid or comfort in the commonwealth, or elsewhere, and thereof be convicted of open deed, by the evidence of two sufficient witnesses, or his own voluntary confession, the said cases, and no others, shall be adjudged treasons which extend to the commonwealth, and the person so convicted shall suffer death by hanging, and shall forfiet his lands and goods to the Commonwealth.*
He hated rebels like pizen. Damn forsworn traitors. They must swing. Whosoever committeth murder by poisoning shall suffer death by poison.
Umm… Whenever sentence of death shall have been pronounced against any person for treason or murder, execution shall be done on the next day but one after such sentence, unless it be Sunday, and then on the Monday following.
Damned appeals… Just cheat the hangman. Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.
Tom, Tom, you need to lie down for a while… Whosoever on purpose and of malice forethought shall maim another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or otherwise, shall be maimed or disfigured in like sort: or if that cannot be for want of the same part, then as nearly as may be in some other part of at least equal value and estimation in the opinion of a jury and moreover shall forfeit one half of his lands and goods to the sufferer.
Tom, shut up now.
All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, inchantment, or sorcery or by pretended prophecies, shall be punished by ducking and whipping at the discretion of a jury, not exceeding 15. stripes.
The Old Ways are The Good Ways. Slaves guilty of any offence punishable in others by labor in the public works, shall be transported to such parts in the West Indies, S. America or Africa, as the Governor shall direct, there to be continued in slavery.
That’s the oddest of all, because the Apostle of Freedom was one of the founders of the regulating rides, which patrolled the Southern countryside for slaves away from their plantations without leave. So on the one hand they are made to stay on the old homestead as punishment, and on the other they can be sent into worse countries far away for minor offences as punishment.
Life and limb has no connection to hanging, drawing and quartering in its origin. It goes back to Old English and the early cites from OED simply convey physical risk to life or limb.
I know-everything I know about the law, I learned in HS.
And, guess what? I don’t have to pay taxes, I’m not a person, I’m a corporation, and you need to let me out of prison because I was convicted under a flag with a gold fringe.
Not to hijack my own thread, but in high school, I had this class called “street law”. And it was wonderful. It was taught by a teacher, who was a law student himself. And they covered everything. Has anyone else ever heard of a class called “street law”? I mean, I know what a street is. And I know what law is. But “street law”…?
I ask because in high school/college, it was taught that “it was obvious” that “rule of thumb” meant that it was legal to beat a woman as long as the stick wasn’t wider then your thumb. And while that is commonly taught, it is 100% BS and has no factual basis. And this sounded similar: come up with a good story post hoc.
Jonathan Q. Gunsel aka ‘Switchblade Jack’ : he’s as willing to challenge the judge to a bare-knuckle bout as to confound the Supreme Court with his forensic genius.
