It appears from Fleta, and also from Britton (c. 22), that the punish ment in the reign of Edward L, when the first traces of it in the history of English law appear, consisted merely of severe imprisonment, with a diet barely sufficient to prevent starvation, until the offender repented of his contumacy and consented to put himself upon his trial. A curious charter of pardon in 1357 (` Feeders,' vol. vi. p. 13), recites that a woman indicted for the death of her husband, having stood mute, had been adjudged "ad pcenam suam, ut dicitur, in qua sine cibo et potu in arta prisona per -quadraginta dies vitam sustinuit via miraculi et quasi contra naturam humanam." It appears therefore that at that time the sentence continued to be imprisonment only, and did not authorise the infliction of any further violence. Shortly after wards, 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 of 8 Henry IV. (1406), the judgment upon persons stauding mute, as approved by advice of all the judges, was " that the marshal should put them in low and dark chambers, naked except about the 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 clay on which they had bread they should not have water, and e contra ; and that they should lie there till they were dead." Thus, although the reporter states in this case that the judgment was formally different, the punish ment now became capital, a lingering and painful death being enjoined instead of severe imprisonment to extort submission. 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 virtually 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 criminals who stood wilfully mute upon their arraignment for felony. The press-yard at Newgate at the present day retains it name as derived from this barbarous practice.
Blackstone, after alluding to "the doubts that were conceived of its legality," and "the repugnance of its theory to the humanity of the laws of England," states that the peine forte et dure was rarely carried into practice. 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 existing proceeding ; it is stated as the law of the land by Staundforde, Coke, Hale, and Hawkins, 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 consequent forfeiture of his lands in Lase he was attainted of felony. In 21 Hen. 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 (Cro. Car.' 118) ; in the margin of an inquisitio post mortem of Anthony Arrow smith, in 40 Eliz. (1598), are the words " Prest to death" (Surtees's History of Durham,' vol. ill p. 271) ; and in 1659, Major Strange ways was tried for the murder of John Fussell before Lord Chief Justice Glynn, and, refusing to plead, was pressed to death in New gate. In the pamphlet which very minutely relates 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' Antient 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, Nathaniel Haws continued the press with 250 lbs., for seven minutes, and was released upon his submis sion. Mr. Barrington says that he had been furnished with two instances in the reign of George II., one of which happened at the Sussex assizes before Baron Thompson, 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 II., that the two thumbs should be tied together with whipcord, that the pain of that 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 tho necessity of having recourse to the peine forte et dure ; but it was wholly unauthorised by law. The practice was finally discon tinued in consequence of the statute 12 Geo. III., c. 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. But the law in this respect has been altered by the statute 7 & 8 Geo. IV., c. 27, a plea of 'not guilty' being entered on the record if the prisoner refuses to plead.