hand or face, boaring thro' the eare, whipping, imprisoning, stocking, setting on the pillorie, or Cucking Stool, which in old times was called the Tumbrell." And as to the causes of the arrangement of punishments, hear Hector Boëtius, quoted by Skene (De Verb. Sign.): "Et merum imperium consistit in quatuor, sicut sunt quatuor elementa. In aere, ut hi, qui suspenduntur. In igne, quando quis comburitur propter maleficium. In aqua, quando quis ponetur in culeo et in mare projicitur, ut parricida, vel in amnem immergitur, ut fœminæ furti damnatæ. In terra, cum quis decapitatur et in terram prosternitur."

In the 3rd Institute, under the head "Tumbrel," the following is to be found:-"Furce, Pillot et Tumbrel append, al. view de Frankpledge. And every one" (remarks the learned Coke) "that hath a Leet or Market, ought to have a Pillory and Tumbrell, &c., to punish offenders, as Brewers, Bakers, Forestallers, &c." It seems also that "for want thereof the Lord may be fined, or the Liberty seised." Thus, in some cases, in the time of Edward III., of summonses for claims of view of frankpledge, we find the court inquire if the claimant had pillory and tumbrell, and in one case it is laid down that "Pillory and Tumbrel belong to the Leet, without which justice cannot be done to the parties in the View, for, to punish at all times by amercement is contrary to common law.”2

Further it appears, that, unless there were prescription to the contrary, the expense of the pillory and tumbrell was to be borne by the lord, and not by the inhabitants of the liberty, but stocks, "not being to punish, but to hold," were to be provided at the charge of the town.3

"Fossa, ane pit or sowsie, Furca, ane gallous, in Latine cabalum, quhilk was first institute and granted be King Malcome, quha gave power to the Barrons to have ane pit, quhairin women condemned for theft sud be drowned, and ane gallous quhair-upon men-thieves and trespassours suld be hanged, conforme to the doome given in the Barron Court there anent."4

"Pillory, collistrigium, as it were collum stringens, and Pillorium, from the French 'pelori,' and that may seem to be derived from the Greek Ton, janua, a door, because one standing on the Pillory put his head, as it were, through a door; and opàw, video-was called among the Saxons 'healsfang;' of 'heals,' a neck, and 'fang,' to take;" and Skene, referring to the "Leges Burgorum Scoticorum," says it was

1 Fleta, lib. 2, cap. 12, § 29.—D'Anvers, ii. 289. Chitty's Criminal Law, i. 797.

2 Keilway's Reports, fol. 140, 149, 152. 3 D'Anvers, as above, and authorities cited therein.

Skene, De Verb. Sign.: see also Spelman, Gloss; Blount; Cowel's Interpreter ; Jacob; Cunningham. As to the distinction made between men and women cri

minals, see a case in Pitcairn's Criminal Trials in Scotland (vol. iii. p. 594), in 1636, in which the men were hanged and the women drowned, except such of the latter as had children, and they were burned in the cheek.

5 Cowel; see also Jacob, &c., and that storehouse of varied knowledge, Ducange (sub voce Pilorium).

ordained for the punishment of baxters, (i. e. bakers); and he calls it also "jogs." Spelman, says, " Est supplicii machina ad ludibrium magis quam pœnam-inter fauces duarum tabularum ideo cavatarum collo spectaculum populo præbetur deridendum," but it is difficult to reconcile this notion of a joke, with the statement of Britton (De Larcyns, fol. 24.) that infamy resulted from the infliction of those punishments, and that the oath of the delinquent could no longer be received on juries, inquests, or in testimony; and so too Bracton, in the chapter, De generibus pœnarum (lib. iii. cap. 6), says, that those punishments were attended with infamy. Hence, the counsel of Coke (3 Inst. 219) that justices "should be well-advised before they give judgment of any person to the Pillory or Tumbrell;" and his cautious suggestion, "Fine and imprisonment for offences fineable by the justices aforesaid, is a fair and sure way."

Mr. Morgan, an editor of the fourth edition of Jacob's "Law Dictionary" (1772), mentions that he remembers to have seen, on the estate of a relative of his in Warwickshire, the remains of a tumbrell, "consisting of a long beam or rafter, moving on a fulcrum, and extending to the centre of a large pond, on which end the stool was to be placed;" and Brand ("Popular Antiq.") quotes a description from Misson's "Travels in England." In Baines' "History of the County Palatine of Lancaster," it is stated that, about the close of the last century, a cuck-stool complete stood over a pit, near Longton, on the road from Preston to Liverpool; and Tomlins ("Law Dict.") states that within the memory of persons living in his time, it was used at Banbury, in Oxfordshire, towards women of notoriously immoral conduct, the pool still retaining the name of the cucking-pool. It seems to have been used by the Saxons, by whom it was called "scealfing stole ;" and in Domesday Book it is styled "cathedra stercoralis." Later,3 we find it designated "trebuchet, turbichetum, tribuch, terbechetum," properly, (says Coke), a pit-fall or downfall; and Barrington (on the Statutes, p. 30, in notis), derives it from the Celtic, "tre," ville, and our common word, bucket, "which is likewise probably Celtic," whence it will signify, the town or village bucket. But Ducange has it "Catapulta species, seu machina grandior ad projiciendum lapides," &c.; and so Mènage, who derives it thus, "De traboccare, comme qui diroit in buccam cadere, tomber dans un trou."4 But it appears from Ducange, that there was also

1 Those of the rank of gentleman, could not, according to the usage of the starchamber, be whipped; the infliction of this punishment on Titus Oates was illegal.Chitty's Crim. Law, vol. i. 796. As to punishment of witches in the pillory, see Tomlins' Law Dict. (4th ed.)

* Under a statute of James VI. (Scotland) A.D. 1567, cap. 18, entitled, "Anent the fithie vice of fornication and punishment

2

of the samin," the offender shall, for the third offence, pay £100 (Scots), be thrice ducked in the foulest pool of the parish, and be banished the town or parish for ever; and shall be treated in the like manner for every further offence.-Hume's Commentaries on the Law of Scotland respecting Crimes, i. chap. 21 (page 464, 2nd ed.).

3 Carta Joh. Reg. dat. ii., Junii, An. 1 Reg. Hereon also see Trèvoux.

a warlike machine called "tumbrellum," which name seems to have been that most commonly used for the instrument of punishment.

By Bracton it is styled "tymboralis," and in Fleta "tomborale." Coke tells us, in his day tumbrell was a word in use for a dungcart; and later we have it used in this sense by Dryden,2

"My corps is in a tumbril laid, among

The filth and ordure, and inclos'd with dung."

The word took many shapes, as tumbrella, tymbrella, tymborella, and in a case reported by Keilway (8., temp. Edw. 3), "one John was summoned to answer for that he claimed view, waiffe, fourcher, pillory, and tumrell;" but this may be a misprint, as it appears frequently elsewhere in the book "tumbrell."

Jamieson, in his "Etymological Dictionary of the Scottish Language," questions the correctness of rendering "tumbrellum" by "cockstule," which he thinks the same as "pillorie;" for, he says, "kaak is a Dutch pillory, being an iron collar fastened either to a post or any other high place," although a derivation is given from the Teutonic "kolcken," ingurgitare, from "kolck," gurges, vorago, vortex; and, he adds, that in latter times it has been used to denote the pillory.

Ramsay has the following allusion to this instrument of punish

ment:

"The tane, less like a knave than fool,
Unbidden clam the high Cock stool,
And put his head and baith his hands
Throw holes where the ill-doer stands."

Brand, too, thinks the tumbrell different from the cucking-stool, founding his opinion on a claim (quoted by Cowel) made in Henry VII.'s time, in which a distinction is made between the offenders and the punishment, thus:-" punire... braciatores (i.e. brewers) per tumbrellum, et rixatrices per Thewe, hoc est ponere eas super scabellum, vocat. a Cucking Stool;" and the derivation of cucking-stool given by Coke (under "the Trebuchet or Castigatory") would appear to fix that instrument as the punishment for scolds, but in so doing, carries its identity far away from the pillory on the etymological proofs which Jamieson thought perceptible. "Cuck or Guck, in the Saxon tongue signifieth to scould or brawl (taken from the Cuckhaw or Guckhaw, a bird, qui odiose jurgat et rixatur) and Inge, in that language (Water), because she was, for her punishment, soused in the water; and others fetch it from Cucquean, i.e. Pellex."4 So Coke.

It was also termed "goginstole" and "cokestool," and by some

1 Gloss. In French, tombereau, from the verb, tomber, see also Junii, Etymol. Angl. See Johnson's Dictionary.

3 Popular Antiquities, vol. ii. p. 441.

Vide supra, for its use in the county of Lancaster not long ago; and its identity with the custom which formerly obtained among the Saxons.

it is thought corrupted from choaking-stool, "quia hoc modo demersæ aquis ferè suffocantur."1

The court-leet,2 or view of frankpledge, said to be the most ancient criminal3 court in the land, had for its judge the steward ("who should be a barrister of learning and ability," says Tomlins), and the jury was composed of twelve freeholders. Dugdale says this court was originally that spoken of as "tryhing" or "lathe" (among the Saxons) in which the barons and freeholders of these parts were judges.*

The existence in England of the court-leet, with its other appellation of "view of frank pledge," seems to have sprung out of the institution of Alfred the Great, that all the freemen of the district should be mutual pledges for the good behaviour of each other ;5 and

the happy results of this ordinance are described by Lambard (Perambulation of Kent, p. 27) to have been "that if a man had let fall his purse in the highway, he might at great leisure and with good assurance have come back and taken it up again." In the leet all offences under high treason could be enquired into, its jurisdiction1 being as extensive as its prototype, the gothic "hæreda," which "de omnibus quidem cognoscit non tamen de omnibus judicat ;" and ranging (in the words of Blackstone) "from common nuisances and other material offences against the King's peace, down to eaves-dropping, waifs, and irregularities in public commons;" or, in the more general description of Coke (accounting for the sheriff's tourn and the leet being courts of record, and not the courts of the county, of the hundred, and the courts-baron), "instituted for the Commonweal, as for conservation of the King's peace, and punishment of common nuisances, &c."4

But the particular articles which were to be given in charge by the steward were set forth in certain statutes, as, for instance, the 17th Edward II., the statute for view of frank pledge; the 51st Henry III., The Assise of Bread and Ale;" the 2nd Edward VI., cap. 10, for the punishment of any corruption in the making of malt for

by the peasants. The apportionment of the obrok (a fixed tribute to the lord), the distribution of land escheated by the death of the occupiers, the punishment of minor offences, and the arrangement of local disputes, form some of the offices of the council. Several villages form a district, over which is an officer called a starchina, who, with assessors, holds a court in which recruits for the army are levied. The starchina is elected by deputies sent from the villages of the district, a number of which districts form a volost, under a functionary also elected, who, with assessors, forms an higher court of more extended jurisdiction. Here may be traced the tything forming the court-leet, over which was the headborough, or tything-man; then the hundred-court (under the bailiff), formed out of ten tythings; and, finally, the countycourt, with the shire-reeve, or sheriff, presiding-(Etudes sur la Situation Intérieure, la Vie Nationale, et les Institutions Rurales de la Russie, par le Baron Auguste de Haxthausen, Hanovre, 1852). "The most remarkable approximation to our own institution seems to have existed at an early period in Russia for the trial of criminal cases. In the French translation of M. Karamsin's Histoire de Russie, we find the following: Le plus ancien code des lois russes porte que douze citoyens assermentés discutent suivent leur conscience les

charges qui pèsent sur un accusé, et laissent aux juges le droit de determiner la peine.'”— Forsyth's History of Trial by Jury, p. 37, note; see also the same work (chap. iv. sect. 4) as to the different kinds of Anglo-Saxon courts.

14 Inst. 265. D'Anvers, ii. 290. Jurisdictions, or the lawful authority of Courts Leet, &c., &c., written by the methodically learned John Kitchin of Gray's Inne, Esq., London, 1663.

Bl. Com., b. iv. c. 19, quoting Stiernh. de jur. Goth.

3 Ibid.

44 Inst. 263. See the following, in Hu dibras, as to" what base uses" it was turned to in the seventeenth century :

"Be forced t'impeach a broken hedge
And pigs unring'd at lis franc pledge.
Discover thieves, and bawds, recusants,
Priests, witches, eaves-droppers, and nusance;
Tell who did play at games unlawful,
And who fill'd pots of ale but half-full."

Are the advocates of the "rights of women" aware that to the parliament or council upon this occasion (A.D. 1266) held at Winchester, all the wives of the nobles who had been killed in war, or of those captive, were summoned? The word in the statute, as Barrington points attention to, is braciatrix, a woman-brewer; so the sex appears to have had a share, on this occasion at least, in legislating for itself.