PEINE FORTE ET DURE. The "strong and hard pain," which is denoted by these words, was a species of torture used by the English law to compel per sons to plead, when charged with crimes less than treason, but amounting to felony. It was applicable whenever the accused stood mute on his arraignment, either by his refusal to put himself upon the ordinary trial by jury, or to answer at all, or by his peremptorily challenging more than twenty jurors, which was a contumacy equivalent in construction of law to actually standing mute. This proceeding differed essentially from the torture which generally prevailed in Europe, and which, as connected with the royal prerogative, was also practised in England for several centuries, inas much as the object of the peine forte ei dure was to force submission to the regular mode of trial prescribed by the law, and not to compel testimony or the confession of a crime.
The origin of this practice is un certain. It appears from Fleta, and also from Britton (cap. 22), that the punish ment in the reign of Edward I., when the first traces of it appear, consisted merely of severe imprisonment, with a diet barely sufficient to prevent starva tion, until the offender repented of his contumacy, and consented to put himself upon his trial. Shortly afterwards, however, the practice of loading the sufferer with weights and pressing him to death appears to have become the regular course. In the Year Book,' 8 Henry IV., 1 (1406), the judgment upon persons standing mute, as approved by advice of all the judges, was " that the marshal should put them in low and dark chambers, naked except about their waist ; that he should place upon them as much weight of iron as they could bear, and more, so that they should be unable to rise ; that they should have nothing to eat but the worst bread that could be found, and nothing to drink but water taken from the nearest place to the gaol, except running water; • that the day on which they bad bread they should not have water, and e contra ; and that they should lie there till they were dead." There is no trace of any statute or royal ordinance, or of any authority, besides this judicial resolution. to justify a change in the mode of proceeding so material as to affect the life of the party. The term by which it was denoted was also changed from prisone to peine forte et dure ; and from this period, for more than three centuries, until it was vir tually abolished by the stat. 12 Geo. III. c. 20 (1772), pressing to death con tinued to be the regular and lawful mode of execution for persons who stood wilfully mute upon their arraignment for felony. The press-yard at Newgate at the present day retains its name as de rived from this barbarous practice.
Blackstone states that the peine forte et dure was rarely carried into practice (Commentaries, vol. iv. p. 328). It is probable that it was not of frequent occurrence, because, with this fearful punishment for contumacy before their eyes, men would naturally, for the most part (as Hale says), " bethink themselves and plead." It is, however, repeatedly
mentioned in the Year Books as an ex isting proceeding ; it is stated as the law by Staundforde, Coke, Hale, and Haw kins, in their several treatises on the Criminal Law, and the number of the recorded instances in which it is directly or incidentally mentioned, seem to show that it was much more prevalent than has been commonly supposed. The motive of the prisoner in standing mute and submitting to this heavy punishment was to save his attainder, and prevent the corruption of his blood and con sequent forfeiture of his lands in case he was attainted of felony. In the 21st of Henry VI. (1442), Juliana Quicke, who was indicted for high treason, in speaking contemptuous words of the king. had the peine forte et dure because she would not plead (Croke's Charles, 118); in the margin of an inquisitio post mortem of Anthony Arrowsmith, in the 40th of Eliz. (1598), are the words " Prest to death " (Surtees's History of Durham, vol. iii. p. 01); and in 1659 Major Strangeways was tried for the murder of John Fussell, before Lord Chief Justice Glynn, and, refusing to plead, was pressed to death in Newgate. In the pamphlet which very minutely narrates the particulars of this execution, it is stated that the prisoner died in about eight minutes, many people in the press yard humanely casting stones upon him to hasten his death. (Barrington's An tient Statutes, p. 85, note.) In still more recent times, it appears from the Old Bailey Sessions Papers, that at the January Sessions in 1720 one Phillips was pressed for a considerable time, until he begged to stand his trial ; and at the December Sessions, 1721, Nathanael Haws continued under the press, with 250 lbs., for seven minutes, and was re leased upon his submission. Mr. Bar rinon says that be had been furnished with two instances in the reign of George II., one of which happened at the Sussex assizes before Baron Thomp son, and the other at Cambridge, in 1741, when Mr. Baron Carter was the judge. (Barrington's Antient Statutes, p. 86.) In these later instances the press was not inflicted, until by direction of the judges the experiment of a minor torture had been tried, by tying the culprit's thumbs tightly together with strings. It is said in Kelyng's Reports, p. 27, to have been the constant practice at Newgate, in the reign of Charles IL, that the two thumbs should be tied together with whipcord., that the pain might compel the culprit to plead. The adoption of this course was no doubt dictated by merciful motives, and was intended by the judges to prevent the necessity of having re course to the peine forte et dare; but it was wholly unauthorised by law. The practice was finally discontinued in con sequence of the statute 12 Geo. III. cap. 20, which provides that every person who shall stand mute when arraigned for felony or piracy shall be convicted of the same, and the same judgment and execution shall be awarded against him as if he had been convicted by verdict or confession.