PEINE FORTE ET DUKE. The "strong and hard pain," which is denoted by these words, was a species of torture used by the English law to compel persons to plead when charged judicially 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 iu construction of law to actually standing mute. This proceeding differed essentially from the "qutestio " in the Roman law, and the torture which generally prevailed in Europe, and which, as connected with the royal prerogative, was also practised in England for several centuries, inasmuch as its object was to force sub mission to the regular mode of trial prescribed by the law, and not to compel testimony or the confession of a crime.
Much difference of opinion has existed upon the question whether the practice of the peine forte et dure originated with the statute usually called the Statute of Westminster 1 (3 Edw. 12), or whether it was in use at an earlier period. The latter opinion is maintained by Coke and Hale, but the former is adopted by Staiindforde, Blackstone, and Barrington. In a note to Hales' Pleas of the Crown,' vol. H., p. 322, Emlyn says that although the Statute of Westminster 1 speaks of this punishment rather as a thing already known than as a new intro duction, there is no notice taken of it in any ancient author, case, or record before the reign of Edward I.; and, on the contrary, he cites two curious records in the reign of Henry III., from which it appears that persons at that time arraigned for felony, and dandilyg mute, were not put to peine forte et dure, but had judgment to be Upon this point it is worthy of remark that the statute of Edward I. merely directs that "such persons as will not put themselves upon inquests of felonies at the suit of the king shall be put into hard and strong prison (soient says en la prisone fort et dure), as those which refuse to be at the common law of the land ; " whereas the judgment of the peine forte et dure, as given in ancient books, contained many par ticulars of suffering to be imposed on the contumacious prisoner, not mentioned in the statute. Fleta, who must have written ten
years after the date of the statute, describes the judgment to be, that "the party shall be cast into prison and lie upon the bare ground clothed with a single garment and barefooted; that he shall have for his food only three morsels of barley-bread in two days ; that he shall not have food every day, but only on alternate days ; that he shall not drink every day, but that on the day when he shall have no food, water shall be given him to drink." (Fleta, lib. L cap. 34.) It certainly seems improbable that all these circumstances should, within a very few years, have been added to the judgment warranted by the statute, if the statute had really been the origin of the practice. Mr. Reeve has plausibly suggested that the only object and effect of the statute was to apply the same compulsory process to those who refused to submit themselves to trial by jury in indictments at the king's suit, which had been previously used to compel persons to put themselves upon ancient methods of inquiry, namely, the duel, the ordeal, or the wager of law. (` HIM, of the English Law,' voL it, p. 137.) The trial by jury had no doubt been much encouraged during the reign of Henry HI., in opposition to the barbarous modes of trial previously used ; and it is therefore by no means improbable that this statute should have contemplated the promotion of this great judicial improve ment. The language of the enactment also is entirely consistent with .the view of its object suggested by 31r. Reeves. On the other hand it must be acknowledged that the instances above mentioned, as cited by Emlyn, and the total silence of Glanville and Braden, as well as of the „judicial records anterior to the statute, respecting such a mode of enforcing submission to the law, are adverse to this interpretation. The origin of this rude proceeding must therefore be considered as uncertain.