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felony ; but should, for his obstinacy, have received the terrible sentence of penance, or peine (which, as will appear presently, was probably nothing more than a corrupted abbreviation of prisone) forte et dure.
Before this was pronounced the prisoner had not only trina admonitio, but also a respite of a few hours, and the sentence was distinctly read to him, that he might know his danger (m): and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it (n). Thus tender was the law of inflicting this dreadful punishment: but if no other means could prevail, and the prisoner, when charged with a capital felony, continued stubbornly mute, the judgment was then given against him, without any distinction of sex or degree. A judgment which was purposely ordained to be exquisitely severe, that by that very means it might rarely be put in execution (6).
The rack, or question, to extort a confession from criminals, is a practice of a different nature: this having been only *used to compel a man to put himself upon his trial; that being a species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once when the dukes of Exeter and Suffolk, and other ministers of
(m) 2 Hal. P. C. 320. (n) 2 Hal. P. C. 321 ; 2 Hawk. P. C. 332.
(6) Aulus Gellius with more truth the consequence of a conviction by a hath made the same observation upon verdict. the cruel law of the Twelve Tables There is a memorable story of an De inope debitore secundo, “ Eo con- ancestor of an ancient family in the silio tanta immanitas pænæ denunciata north of England: In a fit of jealousy est, ne ad eam unquam perveniretur ;" he killed his wife; and put to death for he adds, “ dissectum esse antiquitus
his children who were at home, by neminem equidem neque legi neque au- throwing them from the battlements of divi :" lib. 20, c. 1. But with respect his castle ; and proceeding with an to the horrid judgment of the peine intent to destroy his only remaining forte et dure, the prosecutor and the child, an infant nursed at a farm-house court could exercise no discretion or at some distance, he was intercepted shew no favour to a prisoner, who stood by a storm of thunder and lightning. obstinately mute. And in the legal This awakened in his breast the comhistory of this country there are nu- punctions of conscience. He desisted merous instances of persons, who had from his purpose, and having surrenresolution and patience to undergo so dered himself to justice, in order to terrible a death, in order to benefit secure his estates to this child, he had their heirs by preventing a forfeiture the resolution to die under the dreadful of their estates, which would have been judgment of peine forte et dure. – CH.
Henry VI, had laid a design to introduce the civil law into this kingdom as the rule of government, for a beginning thereof they erected a rack for torture; which was called in derision the duke of Exeter's daughter, and still remains in the tower of London (): where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth (p). But when, upon the assassination of Villiers duke of Buckingham by Felton, it was proposed in the privy council to put the assassin to the rack, in order to discover his accomplices; the judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England (9). It seems astonishing that this usage, of administering the torture, should be said to arise from the tenderness to the lives of men: and yet this is the reason given for its introduction in the civil law, and its subsequent adoption by the French and other foreign nations (r): viz. because the laws cannot endure that any man should die upon the evidence of a false, or even a single witness; and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man's virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves ! But there needs only to state accurately (s), in order most effectually to expose this inhuman species of mercy, the uncertainty of which, as a test, and criterion of truth, was long ago very elegantly pointed out by Tully; though he lived in a state wherein it was *usual to torture slaves in order to furnish evidence : "tamen,” says he, “illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quæsitor, flectit libido, corrumpit spes, infirmat metus ; ut in tot rerum angustiis nihil veritati loci relinquatur (t) (7)."
(0) 3 Inst. 35.
and precision that are truly mathe(n) Barr. 92, 496.
matical : “ the force of the muscles (9) Rushw. Coll. i. 638.
and the sensibility of the nerves of an (r) Cod. I. 9, t. 41, 1. 8, and t. 47, innocent person being given, it is re1. 16; Fortesc. de LL. Ang. c. 22. quired to find the degree of pain ne
(s) The marquis Beccaria, (ch. 16,) cessary to make him confess himself in an exquisite piece of raillery, has guilty of a given crime.” proposed this problem, with a gravity (1) Pro Sulla, 28.
(7) But mental anguish subdues these torments, the constitution of
every man's mind as well as body moderates them, the inquisitor regulates
The English judgment of penance for standing mute (v) was as follows: that the prisoner be remanded to the prison from whence he came ; and put into a low dark chamber ; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he could bear, and more : that he have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison door ; and in this situation this should be alternately his daily diet, till he died, or (as anciently the judgment ran) till he answered (u).
It hath been doubted whether this punishment subsisted at the common law (w), or was introduced in consequence of the statute Westm. 1, 3 Edw. I. c. 12 (x), which seems to be the better opinion. For not a word of it is mentioned in Glanvil or Bracton, or in any ancient author, case, or record, that hath yet been produced,) previous to the reign of Edward I.: but there are instances on record in the reign of Henry III. (y), where persons accused of felony, and standing mute, were tried in a particular manner, by two successive judges, and convicted ; and it is asserted by the judges in 8 Hen. IV. that, by the common law before the statute, standing mute on an appeal amounted to a conviction of the felony (2). This statute of Edward I. directs such persons *" as will not put themselves upon inquests of felonies before the judges at the suit of the king, to be put into hard and strong prison (soient mys en la prisone fort et dure) as those which refuse to be at the common law of the land.” And, immediately after this statute, the form of the judgment appears in Fleta and Britton to have been only a very strait confinement in prison, with hardly any degree of sustenance : but no weight is directed to be laid upon the body, so as to
(v) 2 Hal. P. C. 319; 2 Hawk. P. C. 329.
(u) Britton, e. 4 & 22. Fiet, l. 1, c. 34, $ 33.
(w) 2 Inst. 179. 2 Hal. P. C. 322. 2 Hawk. P. C. 330.
(r) Staundf. P. C. 149; Barr. 82.
(2) Al common ley, avant le stutute
them, passion diverts, hope corrupts, ties of so many things, no room is left fear debilitates, until, in the perplexi- for truth.
hasten the death of the miserable sufferer : and, indeed, any surcharge of punishment on persons adjudged to penance, so as to shorten their lives, is reckoned by Horne in the mirror (a) as a species of criminal homicide. It also clearly appears, by a record of 31 Edw. III. (6), that the prisoner might then possibly subsist for forty days under this lingering punishment. I should, therefore, imagine that the practice of loading him with weights, or, as it was usually called, pressing him to death, was gradually introduced between 31 Edw. III. and 8 Hen. IV. at which last period it first appears upon our books (c); being intended as a species of mercy to the delinquent, by delivering him the sooner from his torment: and hence I presume it also was, that the duration of the penance was then first (d) altered ; and, instead of continuing till he answered, it was directed to continue till he died, which must very soon happen under an enormous pressure.
The uncertainty of its original, the doubts that were conceived of its legality, and the repugnance of its theory (for it rarely was carried into practice) to the humanity of the laws of England, all concurred to require a legislative abolition of this cruel process, and a restitution of the ancient common law ; whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge. Or, if the corruption of the blood and the consequent escheat in felony had been removed, the judgment of
peine forte et dure might, perhaps, have still innocently re(*329] mained, *as a monument of the savage rapacity with which
the lordly tyrants of feodal antiquity hunted after escheats and forfeitures ; since no one would ever have been tempted to undergo such a horrid alternative. For the law was, that by standing mute, and suffering this heavy penance, the judgment, and of course the corruption of the blood and escheat of the lands, were saved in felony and petit treason; though not the forfeiture of the goods; and therefore this lingering punishment was probably introduced, in order to extort a plea ; without which it was held that no judgment of death could be given, and so the lord lost his escheat. But in high treason, as standing mute is equivalent to a conviction, the same judgment, the same corruption of blood, and the same
(a) Ch. 1, § 9.
(d) Et fuit dit, que le contraire aroit estre fait derant ces heurs. (Ibid. 2.)
which is either
forfeitures always attended it, as in other cases of conviction (e). And very lately, to the honour of our laws, it hath been enacted by statute 12 Geo. III. c. 20, that every person who, being arraigned for felony or piracy, shall stand mute or not answer directly to the offence, shall be convicted of the same; and the same judgment and execution (with all their consequences in every respect) shall be thereupon awarded, as if the person had been convicted by verdict or confession of the crime (8). And thus much for the demeanor of a prisoner upon his arraignment, by standing mute ; which now,
in all cases, amounts to a constructive confession (9)
II. The other incident to arraignment exclusive of the 11. Confession, plea, is the prisoner's actual confession of the indictment. simple, Upon a simple and plain confession, the court hath nothing to do but to award judgment: but it is usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment (f).
But there is another species of confession, which we read or by approvemuch of in our ancient books, of a far more complicated kind, which is called approvement. And that is when a *person, indicted of treason or felony, and arraigned for the [*330] same, doth confess the fact before plea pleaded; and appeals or accuses others, his accomplices, of the same crime, in order to obtain his pardon. In this case he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offences; and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to
(e) 2 Hawk. P. C. 331.
(1) 2 Hal. P. C. 225.
(8) Two instances have occurred, rather than a confession. For it would since the passing of this statute, of operate more powerfully as an example, persons who refused to plead, and who, and be more satisfactory to the minds in consequence, were condemned and
of the public, if the prisoner should executed. One was at the Old Bailey, suffer death after a public manifestafor murder, in 1777, the other was for tion of his guilt by evidence, than that burglary, at the summer assizes at he should be ordered for execution only Wells, in 1792. It might perhaps from the presumption which arises from have been a greater improvement of his obstinate silence. ---CH. the law, if the prisoner's silence had (9) Vide ante, 324, note (5). been considered a plea of not guilty,