... but it wasn't meant to be that way.
Card's description of peine forte et dure is reasonably accurate for the later years, though he has committed the common error of assuming that the crushing was in order to torture a confession or simply a method of execution. It was in fact nothing of the kind! With the exception of the trials in the Star Chamber, English law, unique in Europe, has never countenanced the torturing of suspects. Astonishingly, the prisoner committed to the peine could in fact end his torment at any time, simply by agreeing to be tried by jury. This may seem extremely harsh, and even a medieval lawyer would probably agree. The reason for this disproportion was, surprisingly, due to a simple administrative error sometime in the thirteenth century.
The Problem of Judgement
Trials are a very tricky business. Even today, with modern policing, forensics, interrogations, rules of evidence and impartial juries, mistakes are still made and often one can never be truly sure whether the correct verdict was reached. In medieval times, however, it had been reasonably simple; a person on trial could demonstrate their guilt or innocence through the Ordeal. Traditionally, this was the uncomplicated matter of a priest blessing a pound of iron, which was then heated on a fire. When the metal was red hot, it was handed to the prisoner, who would have to carry it a set number of paces, after which their hand was bound and the wound examined three days later. If it was healing well, they were innocent, but if it was not, they were guilty. The reasoning was that God decides how wounds heal and would not condemn an innocent person by causing them to heal badly. It is easy to see the appeal of such a system.
The Catholic Church, however, did not like it. They saw it as testing God, an act forbidden by the bible. Not only that, but the involvement of the clergy with something that caused pain or spilled blood was considered to be abhorrent. In 1215, the Fourth Lateran Council issued a decree banning priests from "blessing the elements," effectively putting a stop to the Ordeals overnight. The legal world was taken by shock, there were only two other means of trial known to the law, the first being the ancient wager of battle (trial by combat – still a legal option in some English trials until 1819!), but that required two people and was obviously no use where a criminal prosecution was brought by the crown. The second was the trial by jury, an institution introduced by the Assizes of Clarendon in 1166, but unpopular with the courts. "Why," they asked, "should a man be compelled to put himself upon his countrymen, when he may simply put himself upon the judgement of God?" As a result, juries had their criminal role restricted to indicting the person, before putting them to the ordeal.
As a temporary measure, the King's Council ordered that those who were to be tried for lesser offences be allowed to abjure the realm (to be given safe passage to a port, and sent abroad), and those being charged with more serious felonies to be imprisoned indefinitely until a means of trial could be found. On the continent, the solution had been to use increasing degrees of torture either to secure a confession or determine the probability of innocence, but such methods were notoriously unreliable and the English judges looked elsewhere. In the end, after experimentation with inquisitorial systems, they setted upon the creation of "petty juries," which had already been used to try civil actions of trespass. It was not, however, precisely the same as the system we know today.
Objection to the Jury
The jury had grown out of the old supplementary system of trial by oath in which witnesses would swear to their knowledge of the prisoner's character or fama. They would usually be locals who knew the person well and could judge for themselves whether or not he was likely to have committed the crime he was charged with. The new juries, although they were not witnesses, were still drawn from the local area and as a general rule would know the prisoner either personally or at least by reputation. Not only that, but until well into the fourteenth century juries were chosen from the people already in the court, which at the time would have already formed the grand jury responsible for indicting the prisoner in the first place! It is little wonder that some prisoners would rather not been tried in this way.
There is evidence that there was considerable opposition to the trial by jury at its introduction. In particular, the Mirror of Justices - a thirteenth century book that in some ways represented the same audience that the reactionary tabloids do today - was particularly vehement, demanding the reintroduction of the Ordeal and criticising judges for using rhetoric trickery in order to secure a concession to jury trial from the defendant. The Mirror certainly had cause for complaint, law reports from the time indicate, sometimes in considerable detail, that judges could be extremely liberal in their interpretation of the prisoner's words, often deeming them to have consented to a jury when they had intended to do no such thing.
At the time, it was considered to be one of the liberties of English Law that a person did not have to consent to trial by anyone other than God, but that of course did not mean that they could not be persuaded. In 1219, the King's Council, still unwilling to make trial by jury compulsory decreed that those who would not stand trial must simply be put back in prison until they changed their minds. This was meant to be a coercive measure, but not a deliberately fatal one, indeed, in 1275 parliament passed the Statute of Westminster I c.12, which stated that those who refused jury trial should be put to "prison forte et dure" - harsh imprisoning. This meant that they would be kept in a gaol on a meagre diet until they agreed to a jury trial. It would have been an unpleasant existence but certainly not as bad as being pressed to death.
The Importance of Clear Handwriting
Unfortunately the statute was misread, probably not deliberately. It very shortly became "peine forte et dure" - harsh pain. Sadistic judges, frustrated by some prisoners' refusals to put themselves on their country now used this erroneous interpretation as an excuse to have those who refused trial put effectively to torture. At first, the method of inducing the pain was discretionary, but by the beginning of the fourteenth century Crushing had become the standard. It is notable though that the shadows of the original statutory intent still remained – the prisoner's diet of bread one day and water the next was the standard that prison forte et dure was supposed to entail.
One could be forgiven for wondering why anyone would choose this fate. Surely even death by hanging after a guilty verdict would be preferable to the agonising process of the peine, which could take days if those administering it so wished. Perhaps it is possible that some ardent traditionalists really did not believe in the process of jury trials, but this seems unlikely, especially as the memory of the trial by ordeal faded out of the country's consciousness. The real reason seems to have been to do with what was known as the "corruption of blood," a legal doctrine that the property of those convicted of a capital offence would escheat to the Crown – that is, the relatives blood would become corrupted rendering them incapable of inheriting from the felon. If a person believed that they were very likely to be convicted by a jury, they might opt to face the peine, thus ensuring that their kin would be provided for after their death.
By the eighteenth century, the forfeiture of property was no longer enforced, and it is something of a mystery why anyone after this point continued to choose to submit themselves to the peine forte et dure though one can imagine that they feared what may come out during the trial process and preferred to die without such dishonour. The last known case of the peine being enforced occurred in Cambridge in 1741, and the practice was finally abolished by the Statute 12 Geo III, c.20. Even then, however, a refusal to plead was read as a guilty plea and therefore in the plethora of capital cases that existed at the time, could result in death. This was changed in 1827, and to this day a refusal to plead is taken to be a the equivalent of a plea of not guilty.
The problem faced by the judges of the thirteenth century was a real one. In a time when God was believed to judge all trials, to suddenly have that method removed from them was understandably a considerable blow. To have the comfort of knowing that your fate is in the hands of the omniscient almighty replaced with the uncertainty of the will of twelve men who have no way of knowing the true answer must have come as an awful shock. It is no wonder that some people refused the new method of trial, nor is it surprising that those in charge needed to find a means of coercing them to do accept it. It is unfortunate, unpleasant, grisly, and horrifying that the result was the peine forte et dure, but it is important to realise that this particular barbarism was never supposed to be what it became.
The lectures of Richard Ireland MA LLM
Baker, J H An Introduction to English Legal History (Butterworths 4th Ed. 2002)
Research undertaken for my undergraduate dissertation "The Decline of the Wager of Battle in English law".