CHAPTER VI.

PEINE FORTE ET DURE.

_Peine forte et dure_,[1] or, the “strong and hard pain,” as it was most appropriately termed, was the name given in Europe to the particular kind of punishment formerly inflicted upon a prisoner, charged with felony, where he stood mute and refused to answer on his arraignment, or having entered his plea of not guilty, where he peremptorily challenged more than twenty jurors, which was quite generally considered a contumacy equivalent to standing mute.[2]

Generally, in indictments for high treason and the lower felonies and misdemeanors, standing mute was held equivalent to a conviction and the prisoner was sentenced and received his punishment, just as if he had entered a plea of guilty or suffered a conviction. But in all other felonies the prisoner was required to plead to the indictment, before a conviction could be obtained and if he obstinately stood mute, or refused to plead, he was subjected to the _peine forte et dure_, a judgment purposely ordained to be exquisitely severe, that by that very means it might rarely be put into execution.

The judgment for standing mute, was: That the prisoner be remanded to the prison from whence he came, and put into a low, dark chamber, and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he can bear; and more, that he have no sustenance, save only, on the first day, three morsels of the worst bread; and on the second day three draughts of standing water, that should be nearest to the prison door; and in this condition, this should be alternately his daily diet, until he answers to the indictment.[3]

To understand how such an inhuman institution as that of pressing prisoners to death came into existence, it is necessary to understand somewhat the history of criminal proceedings of the period when it obtained. The motive which would induce the prisoner charged with felony to submit to this terrible punishment, rather than enter his plea, was no doubt to escape the attainder which would result from a conviction for felony. If he was convicted of felony, his goods were forfeited to the crown and in the case of capital felony, corruption of blood followed attainder and the felon could neither inherit nor transmit landed property.[4] Where the prisoner had heirs, therefore, and possessed any estate, his attachment and affection for his heirs or children frequently prompted him to suffer the punishment of being pressed to death, to avoid the attainder of his name and the corruption of his blood, for death and attainder would both result from the conviction, which was frequently certain to result, in any event.

Trial by ordeal obtained in England until the thirteenth century,[5] and as a part of the procedure obtaining when this barbarous custom prevailed the prisoner when asked “Culprit, how will you be tried,” replied, “By God,” meaning that he would be tried by ordeal, rather than “By my country,” which was the request for a jury trial. When the prisoner stood mute and refused to plead, the court was so perplexed that frequently the prisoner would escape by some trivial punishment, as the procedure of the period did not include this kind of a case, so the astute criminal lawyers of these times no doubt frequently practiced this subterfuge to perplex the court and secure the escape of a guilty client. Legal forms at this period had much greater efficacy than at present when we have statutes of jeofails and look to the substance, rather than the forms of things, and it was unheard of then to try a prisoner by ordeal, before he entered his plea, or even to put him upon his country, so where he stood mute, the difficult thing was to secure his consent to try him by either method.

Under the stress of the perplexity of having found concrete cases not covered by the custom and practice of the period, the judges instantly ordered some of the offenders standing mute on malice, to be put to death, for refusing to consent to be tried, according to the custom of the realm, but this was practically judicial murder, as the defendant had not been legally convicted, before sentence, so the pendulum of public sentiment swung back from this precedent and brought about a great revulsion to this practice.

In the beginning of the thirteenth century the penalty for refusing to plead consisted merely of a severe punishment, with low diet, until the obstinacy was overcome, and latterly, the practice prevailed, which had no legal sanction, of tying the thumbs together, with whipcord, that the pain might induce the prisoner to plead.

During the reign of Edward I., in the year 1275, in the proceedings of the Parliament of Westminster, the first mention is made of this punishment for standing mute through obstinacy or wilfullness. It was enacted by this statute that felons refusing to plead through obstinacy should be confined in the prison, _forte et dure_. They were to go “barefooted and bareheaded, in their coat only, in prison, upon the bare ground continually, night and day, fastened down with irons,” only eating and drinking on alternate days, until the plea was entered.[6] But the courts could not wait for the obstinate prisoners to voluntarily renounce their obduracy and succumb to such mild treatment and the accumulation of cases where the prisoner stood mute and the growing popularity of this offense, seemed to threaten the speedy dispatch of the criminal business of the period. Starvation was then added to the punishment of confinement, but this did not accomplish the desired end, of forcing these obdurate offenders to consent to be tried, according to the custom then obtaining.

As before seen, the first statute, touching upon this punishment, passed during the reign of Edward I., applied only to “notorious felons,” who were “openly of evil name,” for these alone, refusing to plead before the justices at the King’s suit, were to have the “strong and hard punishment,” that the act called for, and by express statutory exception prisoners “taken upon light suspicion” were not to suffer the punishment.[7]

Some writers have taken the position that the punishment, _peine forte et dure_ owed its existence alone to this statute, but Sir Edward Coke states that the punishment was assessed at common law, before the enactment of this statute,[8] and the statute in merely providing for an imprisonment _forte et dure_, was declaratory of an existing punishment assessed by the common law, but not sufficiently described, or limited.

This view is shared by Reeves, who states that this method of treating felons who stood mute was introduced sometime between the fifth year of the reign of King Henry III. or perhaps from the time of Bracton, and the third year of King Edward I. and the punishment did not owe its existence to this statute.[9]

However this may be, we find that during the reign of Henry IV. the mild punishment provided for by the statute of Edward I. and the proceedings detailed by Fleta and Britton,[10] of merely being fastened down with irons, on the bare ground of the prison, “until the plea was entered,” had given way to the harsher punishment of being compelled to lie under a “_peine_,” “_till they were dead_,” an event most likely to follow speedily from the quantity of weight or iron placed upon such prisoners. The _peine forte et dure_, as it was known, therefore, from the fifteenth to the eighteenth century, seems to have been firmly established as an institution of the English Criminal Law, during the time of Henry IV., and the reason for its existence is to be found in the object of the justices in eyre and justices of gaol delivery, of obviating the necessity of remaining for long periods in the English country towns, waiting for the mild effect of the formerly prevailing punishment, provided for by the statute of the reign of Edward I., in inducing prisoners charged with felony to consent to be tried.[11]

The prevalency of the practice of standing mute in such cases, under the milder form of punishment, increased to such an extent that the patience of the justices was sorely tried. They determined, about the beginning of the fifteenth century, to put an end to such a practice, by furnishing such a harsh punishment that the example of inflicting it would discourage prisoners from thus defying the law, even if it resulted in the speedy and painful death of the offender. All exhortations and mild treatment were abandoned and the obdurate prisoner, thus defying the court, was sentenced to be literally “pressed to death,” unless he recanted and submitted himself to a trial, according to the fixed customs of the realm.

It may justly be doubted if the defiance of the majesty of the law by this failure to plead was sufficient to justify such a barbarous practice, with the object of compelling a respect for the law, or if the remedy was not really worse than the disease, but upon this philosophical phase of the subject we are not concerned. Whether justly or unjustly, this species of punishment obtained for three centuries and a half in the English criminal law and a great many concrete cases, illustrating the application of the custom, arose during this period. And it is interesting to note how the punishment was made more severe with the increasing prevalency of the offense.

In the year 1219, when the first eyre of Henry III.’s reign was in session, a case arose for the instruction and advice of the King’s Council regarding the course to be pursued where the prisoner refused to plead.[12]

It was decided that although the prisoner was charged with the gravest kind of a felony, he was to be safely kept in prison, but the imprisonment was not to endanger life or limb. No suggestion was made of attempting to compel the submission to a trial, and the details of assessing the punishment to be inflicted was left wholly to the discretion of the justices.[13]

The cases occurring before the passage of the statute of Westminster in the reign of Edward I., show that the justices did not have any fixed method of handling the cases wherein the prisoner refused to plead, but took such course as seemed best suited to the individual case before the court. Sometimes the expedient was resorted to of taking the verdict of an exceptionally strong jury and condemning the prisoner, if he was found guilty, regardless of whether he had formally entered his plea or not. During the Warwickshire eyre of 1221 Martin Pateshull pursued this course, on two different occasions.[14] The prisoner stood mute and refused to plead, but the twelve hundredors and twenty-four other knights, having sworn to his guilt, he was hanged.[15]

In 1222, on the refusal of a prisoner accused of receiving felons, to plead to the charge, at Westminster, the court merely committed him to prison, to be held in solitary confinement, although the townships and the knights of the shire had declared him guilty.[16]

During Bracton’s time, the procedure does not seem to have taken the course that it did in later years, as he speaks of the method of compelling a man to place himself upon the country and states that he was considered undefended and quasi-convict, if he refused.[17]

Thus, it appears that before the enactment of the statute of Edward I. the cases arising were determined without any fixed rule governing the punishment to be assessed, but a few years after this act, the prisoner was laden with irons and in the course of a short period the hideous _peine forte et dure_ was developed.[18]

During the reign of Edward III. the courts adopted starvation as a remedy for refusing to plead to an indictment for murder, as the case of Cecelia Rygeway illustrates. She was indicted for the murder of her husband and refusing to plead, she obstinately stood mute. She was committed to prison and lived without meat or drink for a period of forty days and nights, when she was allowed to go free, as her wonderful longevity, without food, was ascribed to the influence of the Virgin Mary, whose intercession could only be reconciled with the innocence of the defendant.[19]

Starvation was generally discarded sometime after the statute of Edward I. and after the reign of Henry IV. the _peine forte et dure_ was the regular and lawful mode of punishing persons who stood mute and obstinately refused to plead in charges of felony.

In 1442 Juliana Quick was arraigned upon a charge of high treason, for speaking contemptuously of the King, Henry VI. She refused to plead and it having been determined that her refusal was obstinate, rather than by an infirmity of nature, she was “pressed to death,” in a summary manner.

The case of Margaret Clitherow, who was pressed to death at York, on Lady Day, March 25’, 1586, is most pathetic, as narrated by her spiritual adviser, the good John Mush, a friendly priest. Margaret’s husband was a Protestant, but she was accused of harboring Jesuit and Seminary priests, of hearing mass and other similar offenses and so she was committed to York Castle and later was regularly arraigned in the Common Hall. When plied with the usual question, “Culprit, how will you be tried?” instead of making the usual answer, “By God and my country,” the prisoner refused to make any other answer than that she would be tried “by God and your consciences.” After repeated entreaties by the court, and continued obstinacy of the prisoner, she was committed to prison and during the intercession of the court Parson Whigington, a puritan preacher, labored long and hard with her to convince her that she ought to forego her obduracy and enter her plea, but she refused to do so. On her second arraignment, when the court seemed about to condemn her to the _peine forte et dure_, Parson Whigington spoke in the interest of the prisoner, calling the court’s attention to the fact that “this woman’s case is touching life and death; you ought not, either by God’s law, or man’s, to judge her to die upon the slender witness of a boy.” Entreating her twice again to renounce her obdurate plea and to throw her case upon the country, on her refusal, the court ordered “the law to take its course”; she had her arms pinioned with a cord, by the Sheriff and as she was led through the crowd, the jeers and taunts, ever levelled at the unfortunate, in keeping with “man’s inhumanity to man,” gave the Sheriff the idea that he was to soon become a popular man, by the murder of this defenseless woman, so he proceeded to his work as if he were, in fact, a hero.

She was urged to press the exemption of pregnancy, but refused, and the Lord Mayor of York, on his knees begged her to enter her formal plea to the charge against her and to submit to trial, as did her friend the good Parson Whigington. She stood firm, as if courting martyrdom, in an attempt to demonstrate the injustice of such a hideous punishment, and finally even the sympathetic Parson Whigington, after expressing his pity, left her and came again no more.

Her execution having been set for Friday, as if in commemoration of the day when the gentle Saviour took his departure upon the cross of Calvary, this innocent woman, on Lady Day, in 1586, also suffered martyrdom and died her death, that the horrible example of this hideous punishment could be made the more detestable. She refused the offer of friends to add sufficient weight to dispatch her immediately, but subjected herself to the torture, as deliberately as any martyr ever took the rack. She was led bare legged and bare-footed through the street, with a loose gown to hide her nakedness and distributed alms to the idle spectators as she passed along. The inhuman wretch who acted as Sheriff was named Fawcett and with no instinct of decency or chivalry, he bade her “put off her apparel,” whereupon she pleaded on her knees, that she might be allowed to die in her “smock” and that “for the honor of womankind, they would not see her naked.” Fawcett refused this becoming plea, but finally, on the entreaty of her friends, she was allowed to die in a long loose linen robe she had made for the occasion.

She was placed flat upon the ground on her back, with a handkerchief on her face; a door was laid upon her body and her hands were bound by Fawcett to two posts, so that her arms and body made a perfect cross; even as the Holy One of Galilee was taunted by the mob who followed Him to Calvary, so this innocent soul was crossed by the taunts and gibes of the vulgar mob, until finally the weights were placed upon the door. A large, sharp stone had been placed under her back, and seven or eight hundred pound weight was placed on the door and this weight broke her ribs and caused them to burst through the flesh on her sides. She gave but a single cry and exclaimed: “Jesu, Jesu, Jesu, have mercy upon me.”[20] Let us hope that with the wail of this lost soul the weeping Christ made room for the misguided martyr, in a realm where such Satanic tyranny and intolerable cruelty are unknown. Strange, is it not, that the death knell of this hideous and cruel procedure did not follow immediately, as a result of the aroused and outraged public feeling, after the death of this good woman, in this cruel manner? But when it is considered that such Satanic cruelty could have lasted for sixteen hundred years after the crucifixion of the Saviour—and that all traces of his presence are not entirely eliminated from the earth, as yet—it is quite evident that the ideals of holiness and righteousness are slow to permeate the hearts of all the human family.

Anthony Arrowsmith stood mute and refused to plead to the charge of felony, in 1598, and was accordingly pressed to death, in the usual manner.[21]

Walter Calverly, of Calverly in Yorkshire, was arraigned at the York assizes in 1605, for murdering his two children and stabbing his wife, and on refusing to enter his plea he was pressed to death, in the castle, by a large iron weight, placed on his breast.[22]

It would be impossible, in any reasonable space, to recount all the most interesting cases where this inhuman punishment was inflicted, during the last half of the sixteenth and the early part of the seventeenth centuries, as a great many prisoners underwent this torture about this time. For the nine years between 1609 and 1618, for instance, there were thirty-two prisoners subjected to this punishment and among this number three were women, in Middlesex county alone. In the record of these cases the Clerk wrote the words: “_Mortuus en pen fort et dur_,” which furnished the sad epitaph for each of the beknighted sufferers who underwent this fearful punishment. The records show that many of these poor prisoners were totally destitute and suffered this punishment either through stupidity of the prisoner or of his counsel, or through obstinacy or indifference to his personal suffering and death.[23]

In 1615 Sir Richard Weston, a prisoner of some note, was arraigned for the murder of Sir Thomas Overbury. He stood mute and obstinately refused to plead to the indictment, after being solemnly warned by the judges of the terrible consequences of his persisting in his defiance of the laws of his country. The proceedings were adjourned to give him time for reflection, but on his continued obstinacy, he was adjudged to suffer the _peine forte et dure_.[24]

Major Strangeways was pressed to death, at Newgate, in 1657, for obstinately refusing to plead to an indictment charging him with the murder of his brother-in-law, Mr. Fussell. At the Coroner’s inquest he was made to take the corpse by the hands and touch the wounds, upon the supposition that if he had committed the murder, the wounds would bleed afresh. Although he was innocent, according to this test, it availed him nothing, however, and he was placed upon trial at the Old Bailey, where so many tragedies were enacted, in the olden time, in the name of the law, and refusing to plead and standing mute, in order to prevent the attainder of his blood and the forfeiture of his estate, resulting from his conviction, so certain to follow his trial, he was condemned to the _peine forte et dure_. The press was placed upon him angle-wise and although of sufficient weight to cause him much pain, it was not heavy enough to kill him, so the spectators, through pity, no doubt, for the sufferer, added the weight of their bodies to that of the press and soon he was out of his suffering and in keeping with the custom of the period his dead body was displayed to the vulgar gaze,[25] that the morbidly curious could advertise the details of the tragedy and thus deter other offenders from a similar offense.

In the year 1720, a man named Phillips, who stood mute and refused to plead to an indictment for felony, was adjudged to undergo the _peine forte et dure_; he was placed under the press at Newgate and suffered the torture for a considerable time, until he concluded to enter his plea of not guilty and stand trial, in the ordinary manner, so the press was removed and he entered his plea and stood trial.[26]

And in the following year, one Nathaniel Hawes, upon his arraignment for a felony, stood mute and obstinately refused to enter his plea and on being sentenced to the _peine forte et dure_, he suffered the pressure of a weight of two hundred and fifty pounds for a period of seven minutes and then gave up his resolution and craved the privilege of entering his plea and throwing himself upon the country in his trial.[27]

In 1726 a man named Burnworth, arraigned for murder, concluded that he would stand mute and try the effects of the _peine forte et dure_. He was sentenced at Kingston to suffer this punishment for his obstinate defiance of his country’s laws and after being pressed for an hour and three-quarters, with four hundred pounds of iron, his will was broken. He was taken to the dock and was tried, convicted and hanged.[28]

From the number of reported cases that have been inspected, it seems that a great many were unable to withstand the suffering resulting from the application of the weight to their bodies, but when the torture was experienced, they would weaken and conclude to enter their plea.

This was true of John Durant, who was arraigned at the Old Bailey, in 1734. Upon his obstinately refusing to enter his plea upon a charge of felony, his thumbs were first tied together with whipcord and the Sheriff pulled him up taut in the presence of the court and the latter dignitary promised him the _peine forte et dure_, forthwith, if he did not regularly enter his plea to the indictment. On reflection, he concluded to do this, so he was placed upon his trial and filed his plea of not guilty.[29]

As late as the year 1741, it is reported that a prisoner was pressed to death, at the Cambridge assizes, for standing mute and refusing to plead to a charge of felony, after the tying of his thumbs and other customary procedure was found to be unavailing.[30]

The only instance noted in which this punishment was ever inflicted in the United States, was in the case of Giles Cory, of Salem, who stood mute and obstinately refused to plead, when arraigned upon a charge of witchcraft and sorcery.[31]

He was arraigned at Salem, in April, 1692, before Hawthorn and Jonathan Curwin. “Mary Walcott, Mercy Lewis, Ann Putnam, Jr., and Abigail Williams affirmed he had hurt them.” He was accused of giving Elizabeth Hubbard a fit; of hurting Benjamin Gold; of bringing the book to these various witnesses; of being frightened in the cowhouse and of threatening suicide.[32]

On September 16’ “just as the Autumn leaves were beginning to glorify the earth,” he was laid upon the ground, bound hand and foot; stones were piled upon him, till the tongue was pressed out of his mouth. The Sheriff with his cane, forced it in again, when he was dying.[33] And he was the first and last to die for this offense in New England.

In his account of this trial, in the “New England Tragedies,” the gentle Longfellow, has made Cory thus explain to Richard Gardner, why he refused to plead:

“I will not plead. If I deny, I am condemned already, In Courts where ghosts appear as witnesses, And swear men’s lives away—If I confess, Then I confess a lie, to buy a life, Which is not life, but only death in life. I will not bear false witness against any, Nor even against myself, whom I count least.”

The Sheriff then calls him to his punishment and Cory answers him:

“I come. Here is my body. Ye may torture it, But the immortal soul, ye cannot crush.”

Gloyd wonders if

“The old man will die and will not plead,”

and while thus wondering, arrives too late to view the test of martyrdom.

In Scene IV. of this tragedy, based upon this sad miscarriage of justice in this New England case, the field near the graveyard is presented, with Cory lying dead, with a great stone upon his breast.

Hathorn and Mather are introduced to the spectators and make a vain attempt to explain and justify the deed and the former points to the dead body of Cory as a horrible example of

“Those who deal in witchcraft and when questioned, Refuse to plead their guilt or innocence And stubbornly drag death upon themselves.”

But Mather, not satisfied with the proceeding, is thus made to deliver himself:

“In a land like this, Spangled with churches, Evangelical, Inwrapped in our salvation, must we seek, In mouldering statute-books of English courts, Some old, forgotten Law, to do such deeds? Those who lie buried in the Potter’s field, Will rise again, as surely as ourselves That sleep in honored graves, with epitaphs, And this poor man, whom we have made a victim, Hereafter will be counted as a martyr.”[34]

The _peine forte et dure_, as an institution of the English courts, continued in effect, as a part of the criminal procedure of the kingdom, until the year 1772, when the statute 12 George III., c. 20, virtually abolished the punishment of pressing prisoners to death for standing mute, when called upon to plead.

This statute declared that any person who should stand mute and refuse to plead, when arraigned for felony or piracy, should be convicted, and suffer judgment and sentence to be rendered against him, the same as if he had been regularly convicted, by verdict or confession.

This procedure was again changed in England, in the year 1827 by the more humane rule, that upon a failure or refusal of the defendant in a felony charge to plead to the indictment, “a plea of not guilty should be entered for the person accused,”[35] and he was thus given the benefit of the legal presumption of innocence, which the criminal law surrounds all prisoners with and he could be convicted and sentenced for the offense charged in the indictment only after this presumption of innocence had been overcome by the proof of his guilt, even though he stood mute and refused to enter his formal plea.

This latter statute, in substance, has been adopted in most of the United States and the cases arising under these statutes illustrate the beneficence of the new procedure.

In Commonwealth vs. Braley,[36] in the year 1804, the defendant stood mute and refused to plead and the court proceeded to empanel a jury to try the defendant to ascertain if he stood mute wilfully, or by Act of God, just as the court proceeded when the _peine forte et dure_ was in force and on the return of the verdict that the defendant wilfully refused to plead, the court remanded him to jail.

In Commonwealth vs. Moore,[37] in the year 1812, the defendant was arraigned upon a charge of larceny and stood mute and upon a finding of the jury that he stood mute through wilfullness, the court proceeded to sentence him, just as if he had been regularly convicted, evidently proceeding under the statute, 12 George III., c. 20.

In State vs. Hare, in the year 1818, in Maryland, the prisoner stood mute and refused to plead, but the court entered up a plea of not guilty for him and proceeded to try him, just as if he had himself entered his formal plea. This enlightened procedure was adopted by Congress at the beginning of the past century, in all cases where prisoners stood mute.

It was provided by Act of Congress, March 3’, 1825, that

“If any person, upon his or her arraignment, upon any indictment, before any court of the United States, for any offense not capital, shall stand mute or will not answer or plead to such indictment, the court shall notwithstanding, proceed to the trial of the person so standing mute, or refusing to answer or plead, as if he or she had pleaded not guilty, and, upon a verdict being returned by the jury, may proceed to render judgment accordingly.”[38]

Since the enactment of this federal statute, similar acts have been adopted in most of the United States and the practice now quite generally obtains of entering a formal plea of not guilty, whenever the prisoner stands mute, for any reason and the trial proceeds just as if the defendant had himself entered his plea.[39]

The punishment for standing mute and refusing to plead, as one of the cruel and extreme methods of procedure of the olden times, has attracted the attention of the poets and writers in the English language.

Shakespeare makes frequent reference to this punishment and always in such manner as to demonstrate that he was thoroughly familiar with the nature and object of the procedure governing the infliction of the penalty upon those who obstinately stood mute, when called upon to plead to indictments for felonies.

Thus, in “Much Ado About Nothing” he makes Hero say to Ursula, when speaking of Beatrice, in the Orchard of Leonato:[40]

“_Hero._ No, not to be so odd and from all fashions As Beatrice is, cannot be commendable; But who dare tell her so? If I should speak, She would mock me into air; O, she would laugh me Out of myself, press me to death with wit.”[41]

In “Measure for Measure,” when the Duke adjudged that Lucio should marry the woman he had wronged, the latter replied:

“_Lucio._ Marrying a punk, my lord, is pressing to death, whipping and hanging.”[42]

In Richard II., on overhearing the talk of the Gardener and servant, in the Duke of York’s garden, concerning the King, the Queen soliloquizes

“_Queen._ O, I am pressed to death through want of speaking,”[43]

as if she were really in the dock and actually conditioned so that she would suffer the customary penalty for standing mute.

Pandarus also refers to the _peine forte et dure_, in Troilus and Cressida, in advising them to “press” the bed to death because it stands mute as to their “pretty encounters” thereon:

“_Pan._ ... I will show you a chamber and a bed, Which bed, because it shall not speak of your pretty encounters, Press it to death: away.”[44]

By a study of the old cases, decided when the _peine forte et dure_ obtained, the development of the law on this subject, can best be understood, for like landmarks, pointing the devious course of the tortuous procedure that obtained for centuries, before the evolution of the science, to the point where it was able to preserve the just rights of the individual, consistently with the demands of society, the later cases evidence the gradual decline of the old, harsh punishment for standing mute, and thus, with the abolition of this quandam formal procedure, that was considered such a material part of the old criminal law of England, the law itself has reached a higher plane, from which we can look down upon the crudities and cruelties of the old system, with pity for the multitudes who were subjected to its harsh rules and false standards. And judging the future by the past, we can indulge the hope that many of our own formal procedures will be amended and abolished, to the end that unjust results and delays may be minimized and the attainment of just ideals promoted.

The science of the law should keep pace with the advance of the student of philosophy. The law should ever stand aloof—even as a just parent—from any punishment prompted solely through the mad power of might. When it has attempted to inflict punishment unjustly, the causes and effects, the advantages, if any and the disadvantage of such procedure, should be thoroughly scrutinized. Laws are man-made, in popular governments and the laws should be improved for the benefit of the people.

We have seen that for centuries, upon the obstinate refusal of a prisoner charged with felony, to enter his plea, the inhuman judgments of the courts—established for the administration of justice—were that he should be literally “pressed to death,” regardless of his guilt or innocence of the charge that he was called upon to answer.

With the passing of this horrible institution—as with others of the past centuries—we can perhaps congratulate ourselves, that with the evolution of the institutions of our civilization, humanity has generally triumphed over inhumanity and the mistakes of our ancestors, although most dearly bought, furnish a lasting object lesson for present and future generations. Every generation, however, has its follies and mistakes and nonsense is not confined wholly to the past ages, but with the errors of the past before us, we ought to avoid the same mistakes that it took such suffering and experience to correct.

However unwise and unjust the standards of our ancestors may have been, which made possible the wholesale legal murder of thousands of human beings, who, for different reasons, defied the fetish and barbarous custom that developed the cruel institution, _peine forte et dure_, this institution, like many others of the past, ought to warn us, like a beacon light, of the dangerous shoals and reefs, which the ship of state should be safely piloted around. But our own procedure contains many incongruities and erroneous standards, that should be corrected, and while priding ourselves upon the fact that nothing so inhuman as “pressing to death,” obtains today, we are still guilty of many “crimes against criminals,” which succeeding ages, in the perfection of the science of jurisprudence, will no doubt regard in much the same light as we of the present age look upon the cruel punishment, _peine forte et dure_.

FOOTNOTES:

[1] The terms are pronounced pān fōrt ā dūr.

[2] II. Reeve’s History English Law, p. 423.

[3] Coke, 2 Inst. 178, 179; Hale’s P. C. vol. ii., 322.

“He was to be laid down, naked, upon the ground, on his back, his feet and head and loins covered, his arms and legs drawn apart, by cords, and as much weight of iron or stone as he could bear, was placed upon his chest.” This punishment was called also, “pressing to death.” Bouvier’s Dictionary; II. Reeve’s History English Law, 134; 4 Sh. Bl. Comm. 324; Britton, ch. 4 fol. ii; Fleta, lib. I., 34, sec. 33.

[4] Coke, Litt. 130a, 391; 6 Coke, 63a, 63b; I. Bishop’s Crim. Law, 641.

[5] II. Essays in Anglo-American Legal History, 392, 396, 486, 488.

There is no doubt but that for a long time after the year 1215, the law did not know what to do with a man who stood mute and refused to plead and the _peine forte et dure_ was an institution slowly and painfully evolved from the customs of the past. II. Pollock and Maitland’s History English Law, p. 650.

[6] II. Reeve’s History English Law, p. 423; Stat. West. l. c. 12.

[7] Statute West, l. c. 12; II. Reeve’s History English Law, p. 423.

[8] 2 Inst. 178, 179.

[9] II. Reeve’s History English Law, p. 424.

[10] Britton, fol. 11, c. iv; Fleta, lib. l. c. 29, sec. 33.

[11] III. Reeve’s History English Law, 439.

[12] Leges Henri, 31, sec. 5; Foedera, i, 154; Palgrave, Commonwealth, 207; Thayer, Harvard Law Review, V., p. 265; II. Pollock and Maitland’s History English Law, p. 650.

[13] II. Pollock and Maitland’s History English Law, p. 650.

[14] II. Pollock and Maitland’s History English Law, p. 651.

[15] Select Pleas of Crown, pl. 153, 157; Hale’s Pl. Cr. ii, 322.

[16] Note Book, pl. 136.

[17] Bracton, fol. 142b, 143b.

[18] Year Book 30, I. Edward I., 511, 503, 531; Britton, i, 26; Fleta, p. 51; II. Pollock and Maitland’s History English Law, p. 652.

[19] Watt’s “The Law’s Lumber Room.”

During the reign of Henry VII., we find two felons, who had been taken from sanctuary, at Southwark, on being arraigned before Sir Thomas Frowike urged their plea of sanctuary, which was overruled, and, on being commanded to plead to the felonies, and refusing, they were peremptorily ordered to be taken back to the jail and there placed upon the bare ground, and that more weight should be placed upon them than they could stand and they be given only bread and water, until they die; in short, that they be literally _pressed to death_, or suffer the terrible _peine forte et dure_. (21 Henry VII., Keilway, 70; IV. Reeve’s History English Law, Finlason’s note, p. 254.)

[20] Law Notes, May, 1910, p. 32; Watt’s “The Law’s Lumber Room.”

[21] Surtee’s History of Durham, vol. iii, p. 271.

[22] Stow’s Chronicle.

[23] Watt’s “The Law’s Lumber Room.”

[24] Law Notes for May, 1910, p. 31; Watt’s “The Law’s Lumber Room.”

According to Rushworth, when John Felton was arraigned for the assassination of the Duke of Buckingham, in November, 1628, the Privy Council debated the question of their right to place the prisoner on the rack. It was finally decided that:

“Torture was not, with one exception, permitted at all, and in that one exception, it was permitted neither as a punishment nor as a means of getting evidence, but as a _persuasion_, to induce a man charged with felony, to put himself upon his trial.”

Vol. 44, Chamber’s Journal, pt. Jan.-June, 1867, p. 373.

[25] Watt’s “The Laws Lumber Room”; Law Notes, for May, 1910, p. 33.

[26] Stowe’s Chronicle.

[27] _Ante idem._

[28] Watt’s “The Law’s Lumber Room.”

[29] Watt’s “The Law’s Lumber Room.”

[30] XI Inter. Enc. _Sub. Nom._ _Peine forte et dure._

[31] Washburn, Jud. History, 142; I. Chandler, Cr. Trials, 122.

[32] “Wonders of the Invisible World,” by Robt. Calef (1828), pp. 329, 333.

[33] “The Spirits in 1692,” Putnam’s Magazine, for January and June, 1856, No. 7, p. 509.

[34] Longfellow’s “New England Tragedies.”

Tradition has it that Cory was pressed to death in an open field, between the Howard street burial ground and Brown street, in Salem.

Nevins, “Witchcraft in Salem Village, in 1692,” p. 107.

[35] 7 and 8 George III., c. 28.

[36] I. Mass. 103.

[37] 9 Mass. 402.

[38] 3 Story, U. S. Laws, 2002 Sec. 14.

[39] Fernandez vs. State, 7 Ala. 511; People vs. Thompson, 4 Cal. 238; Johnson vs. People, 22 Ill. 314; State vs. McCombs, 13 Iowa, 426; Commonwealth vs. Lannon, 95 Mass. 563, holding that the old rule in this state was changed by statute; Thomas vs. State, 6 Mo. 457; Link vs. State, 50 Tenn. (3 Heisk.) 252.

[40] Act III., Scene I.

[41] White’s “Law in Shakespeare,” sec. 40, p. 67.

[42] Measure for Measure, Act V., Scene I.

[43] Richard II., Act III., Scene IV.

[44] Troilus and Cressida, Act III., Scene II.