Tyburn Tree. Alfred Marks
bread which he had should be the worst bread, and the drink that he should have should be putrid water, and that he should remain naked except for a linen garment, and upon the naked ground, and that he should be loaded with iron from the hands to the elbows, and from the feet to the knees, until he should make his submission.[55]
That the “penance” was intended not to kill, but to induce the prisoner to plead, is shown by cases in the Year Book of Edward I. In 1302 one condemned to “the great penance” brought his charter of pardon into court, by means of his friends, ten days after the judgment.[56] In 1357 Cecilia, wife of John de Rygeway, indicted for the murder of her husband, stood mute, and was sentenced to imprisonment accordingly. In this case it was reported to the king “on trustworthy testimony” that Cecilia had lived without food or drink for forty days. This was regarded as miraculous, and Cecilia was in consequence pardoned. Here, in intention at least, the punishment went to the length of depriving of all food.[57]
In a case recorded in the Year Book of Henry IV. (1406) the court ordered that, in addition to the punishment of being fed on the worst bread and stagnant water, two thieves condemned to penance for standing mute should have put upon them as great a weight as they could bear and more, and should so remain till they were dead. But as Chief Justice Gascoigne, who passed the sentence, afterwards said that the prisoners might live for many years, the words “more than they can bear” cannot be supposed to mean that the prisoners were to be pressed to death.[58]
The punishment reached its most terrible form in the reign of Elizabeth. Harrison, in his “Description of England,” says:—
“Such fellons as stand mute and speake not at their arraignement are pressed to death by huge weights laid vpon a boord, that lieth ouer their brest, and a sharpe stone vnder their backs, and these commonlie hold their peace, thereby to saue their goods vnto their wiues and children, which if they were condemned should be confiscated to the prince.”[59]
Here is another addition, the sharp stone under the back.
Harrison’s account is confirmed by two recorded cases. In 1586 Margaret Clitherow was indicted at York for harbouring or relieving priests, a capital offence. Refusing to plead, she was condemned by the judge to the peine forte et dure, “so to continue for three days,” without food or drink except barley bread and puddle water, “and a sharp stone under your back.” The execution of the sentence is thus described: Her hands and feet were tied to posts so that her body and arms made a cross. A door was laid upon her. “After this they laid weight upon her, which when she first felt, she said ‘Jesu! Jesu! Jesu! have mercy upon me!’ which were the last words she was heard to speak. She was in dying one quarter of an hour. A sharp stone, as much as a man’s fist, put under her back: upon her was laid to the quantity of seven or eight hundredweight at the least, which, breaking her ribs, caused them to burst forth of the skin.”[60]
The other case is that of Major Strangewayes, indicted at the Old Bailey on February 24, 1658–9, for the murder of his brother-in-law. He refused to plead, and was sentenced to the peine forte et dure in the usual terms. The press employed on this occasion was triangular in form, the acute angle resting above the region of the heart. “He was prohibited that usuall Favour in that kind, to have a sharp piece of Timber layed under his Back to Accellerate its penetration.” The assistants “laid on at first Weight, which finding too light for a sudden Execution, many of those standing by, added their Burthens to disburthen him of his pain. … In the space of eight or ten Minutes at the most, his unfettered Soul left her tortur’d Mansion. And he from that violent Paroxisme falls into the quiet sleep of Death.”[61]
From these two narratives and Harrison’s statement, in agreement with them, it is clear that the punishment of peine forte et dure, originally severe imprisonment, inflicted to induce a prisoner to plead, had in the hands of the judges become a sentence of death far more painful than hanging, so that one standing mute was more severely punished than if he had been found guilty of the crime for which he was indicted. The clauses of the sentence show a disordered growth in this severity. If a man was to have laid upon him as great a weight as he could bear “and more,” it was superfluous to make provision in the sentence for feeding on alternate days a person who was destined to be pressed to death in a few minutes. Sir William Staunforde, or Stanford, indeed, whose book, “Les Plees del Coron,” was published in 1560, expressly contends that the punishment was to continue, not until the prisoner would plead, but till he was dead.
It appears from the cases recorded and from the passage quoted from Harrison, that standing mute was a practice not uncommon. What was the motive for refusing to plead? It is here that those who have written on the subject have been mistaken. It has been generally assumed that the object was to save the forfeiture of goods which would have followed on a condemnation. This is incorrect. It is true that by standing mute the accused could escape corruption of blood and forfeiture of lands, but he did not thus avert forfeiture of goods and chattels. Sir William Stanford says, after citing a sentence, “Observe that the judge does not say, as Britton formerly said, that the punishment should continue till the prisoner makes a direct answer, but that this shall be his diet till he is dead, absolutely, without any condition in the sentence, express or implied, that he shall be released from penance if he consents to plead. For such a release has never at any time been seen, nor is it reasonable that by such repentance the king should be deprived of the forfeiture of the felon’s goods, to which he is entitled by the said judgment of peine forte et dure.”[62] When, in 1721, Phillips and Spiggott stood mute, the court gave orders that the sentence on such as refuse to plead should be read to them. It concludes, “And he against whom the judgment shall be given forfeits his goods to the king.”
Where the accused was not possessed of land, the practice can be explained by either of two suppositions: either the prisoner refused to recognise the authority of the tribunal, or he desired to save his family from the reproach of a public execution of one of its members. This was the reason alleged to the ordinary of Newgate by Spiggott. A few years earlier, in 1721, Nathaniel Hawes, a highwayman, refused to plead because a handsome suit of clothes had been taken from him, and he was resolved not to go to the gallows in a shabby suit. He gave in when he had borne a weight of 250 lbs. for about seven minutes.[63]
Spiggott, as has been said, bore 350 lbs. for half an hour, and gave way when a further weight of 50 lbs. was put upon him. These cases show that the judges had reverted to the old view that the punishment was inflicted for the purpose of inducing the prisoner to plead.
Another milder form of torture was practised in connection with the peine forte et dure. It is first revealed in the report of a case which was tried at the Newgate Sessions in 1663:—
“At the same Sessions, George Thorely, being indicted for Robbery, refused to plead, and his two Thumbs were tyed together with Whipcord, that the pain of that might compel him to Plead, and he was sent away so tyed, and a Minister perswaded to go to him to perswade him: And an Hour after he was brought again and pleaded. And this was said to be the constant practice at Newgate.”[64]
There was no legal authority whatsoever for this punishment.
By 12 George III. (1772), c. 20, it was enacted that persons thereafter arraigned for felony or piracy, standing mute, should be convicted of the crime charged against them. Such a case occurred in 1777.
Francis Mercier was arraigned at the Old Bailey sessions, beginning on December 3, 1777, for the murder of David Samuel Moudrey. He stood mute. A jury was immediately impannelled by the sheriff to inquire whether he stood mute fraudulently, wilfully, and obstinately, or by the providence and act of God. This jury found that he stood mute fraudulently, upon which Mr. Justice Aston (in the absence of the Recorder) at once passed sentence upon him that he should be executed and his body be afterwards dissected and anatomised. He was hanged at the end of Princes Street, Swallow Street (now Princes Street, Hanover Square).
By 7 and 8 George IV. (1827), c. 28, it was enacted that if a prisoner refused to plead, the court might order a plea of “Not Guilty” to be entered.
It had taken five and a half centuries to discover this