PEINE FORTE ET DURE (L. Fr.). A punishment formerly inflicted in England on a person who, being arraigned of felony, re fused to plead and put himself on his trial, and stubbornly stood mute.
A jury was impanelled to try whether he stood "mute of malice," or "mute by the visitation of God," and if the latter the trial proceeded; but if the former the prisoner was solemnly warned by the judges of the terrible consequences described by Lord Coke, in the trial of Sir Richard Weston in 1615 for the murder of Sir Thomas Over bury, by the words—opere, frigore, et fame. Warnings were given (trina admonitio) and time was given for reflection and often the unfortunate was subjected to entreaties of friends and others, but if he remained ob durate he was adjudged to suffer the sen tence of penance, or peine (which is said by Blackstone to be a corrupted abbreviation of prisone) forte et dure. The judgment was that be return from whence he came, to a low dungeon into which no light could enter ; he was to be laid down, naked, on his back, on the ground, his feet and head and loins covered, his arms and legs drawn apart by cords tied to posts, a sharp stone under his back, and as much weight of iron or stone as he could bear, or more than he could bear, placed on his chest. He was to have the next day three morsels of barley bread, without drink ; the next, three draughts, as much each time as he could drink, of the nearest stagnant water to the prison, without bread; and such was to be his diet on alternate days, till he died. This punishment was vulgarly called pressing to death; 4 Bla. Corn. 324; Cowell; Britton c. 4. fol. 11*. This punishment dates back to a period between 31 Edw. III. and 8 Hen. IV.; 4 Bla. Com. 324; Year B. 8 Hen. IV. 1. It did not at first include the pressing. Orig-. inally when asked how he would be tried the accused must choose between a trial "by God" (by ordeal) and "by my country" (by jury). After the former method of trial was abolished about 1215 the other method re-' mained a privilege to be claimed and in those days the idea did not occur to any one of trying a prisoner by jury without his con sent. By standing mute a prisoner put the
court in difficulty, and at first he was put to death for not consenting to be tried "ac cording to the law and custom of the realm." This was thought too severe and in the Par liament of Westminster under Edward I. there was provided for notorious felons con finement in prison forte at dure; which hi eluded all possible harsh features except death, Then to conquer obduracy,, starva tion was resorted to ; but this being too slow, under Henry IV. the peine was sub stituted for the prison. It continued until 1772 although occasionally something strong er than exhortation was resorted to, as tying up by the thumbs in the presence of the court, at the Old Bailey in 1734. It only ended when standing mute, by statute, in England, became equivalent to a confession or verdict of guilty; 12 Geo. III. c. 20; but in 1827 it was enacted "that in such cases a plea of not guilty should be entered for the accused." The obvious effect of standing mute was to avoid the forfeiture of goods consequent upon conviction of felony and the results of corruption of blood, by an attainder; in case of capital felony. Often, indeed usual ly, in treason cases certainly, conviction was sure and the fortitude required to endure this death by torture would save his children or other heirs from disinheritance. Great numbers did in fact undergo the punishthent which was recorded by the clerk's entry or record, "mortuus en pen' fort' et dur'." The number in rural Middlesex alone in 1609 1618 was thirty-two, of whom three were women, and peers were not protected from it by their privilege. A case is recorded in the last year of George I. and one at least in the reign of George IL The only instance in which this punish went has even been inflicted in this coun try is that of Giles Cory, of Salem, who refused to plead when arraigned for witch craft; Washb. Jud. Hist. 142; 1 Chandl. Cr. Tr. 122.
See Jacob, Law Diet.; 4 Bla. Com. 324; 15 Viner, Abr., Mute.