eating and drinking on alternate days as already set forth. It was
bad enough, no doubt, but not of necessity fatal. So the authorities
perceived, and they again cut the knot by a policy of starvation. So
one infers from the case of Cecilia, wife of John Rygeway, in the time
of Edward III. Cecilia was indicted for the murder of her husband; she
refused to plead. Being committed to prison, she lived without meat or
drink for forty days; and this being set down to the Virgin Mary, she
was thereupon allowed to go free. This procedure seems to have been
found too slow, and the increase of business at the assizes seemed like
to end in a hopeless block. Were the judges to encamp in a country town
while the prisoners made up their mind as to pleading? Something was
wanted to "mend or end" the stubborn rascals; and under Henry IV., in
the beginning of the fifteenth century, the "prison" _forte et dure_
became the "peine" _forte et dure_: with the consequence that, if the
accused declined to plead, there was an end of him in a few hours, the
provision of bread and water being a mere remnant of the older form of
sentence. This procedure lasted till 1772, when the 12 Geo. III., c.
20 made "standing mute in cases of felony equivalent to conviction."
In 1827 it was enacted by 7 and 8 Geo. IV., c. 28, "that in such
cases a plea of not guilty should be entered for the person accused."
The curious formal dialogue between the clerk and the prisoner was
abolished that same year. Something stronger than exhortation was now
and again used before the obdurate prisoner was sentenced to pressing,
thus at the Old Bailey in 1734, the thumbs of one John Durant were tied
together with whipcord, which the executioner strung up hard and tight
in presence of the Court; he was promised the _peine forte et dure_
if this did not answer, but upon a little time being given him for
reflection, he speedily made up his mind to plead not guilty.
It is difficult to explain the distinction drawn between ordinary
felony on the one hand and treason and misdemeanours on the other.
Perhaps the explanation is that the last, being much lighter offences,
were never made the subject of trial by ordeal, and that treason
being a crime endangering the very existence of the State, a sort of
necessity compelled the judge to proceed in the most summary manner.
No student of English History needs to be reminded that a trial for
treason resulted almost as a matter of course in a conviction for
treason. Peers of the realm had many privileges, but they were not
exempt from the consequences of standing mute. Nor, as already noted,
were women. Perhaps it were unreasonable to expect a criticism of the
system from contemporary judges or text writers; but what they did say
was odd enough; they did not condemn pressing, but they highly extolled
the clemency of the law which directed the Court to reason with and
admonish the accused before it submitted him to this dread penalty.
Public-domain text, read in full here on John Shaqi.
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