Note 1843 — Chapter IX · ENGLAND AND THE NORTHERN RACES.

7 Anne c. 21.—While thus legislating for the enlightenment of Scotland, the English majority took care to retain the equally barbarous practice of the peine forte et dure. This was commenced in 1275 simply as a “prisone forte et dure” (First Statute of Westminster, cap. xii.; Cf. Britton, cap. xi.) for felons refusing to plead, and speedily developed into starvation and nakedness (Fleta, Lib. I. cap. xxxii. § 33). Horne (Myrror of Justice, cap. I. § viii.; cap. II. § ix.) evidently regards as illegal “le horrible et perillous lien,” and treats as murder a death occasioned by it. In spite of this protest the process was rendered still more barbarous by piling weights of iron on the poor wretch, and finally the device of a press was adopted in which he was squeezed. In this shape it lost its original justification of wearing out his endurance and forcing him to plead either guilty or not guilty, and became a simple punishment of peculiar atrocity, for, after its commencement the prisoner was not allowed to plead, but was kept under the press until death, “donec oneris, frigoris atque famis cruciatu extinguitur” (Hale, Placit. Coron. c. xliii.). This relic of modern barbarism was not abolished until 1772, by 12 Geo. III. c. 20. The only case of its employment in America is said to have been that of Giles Cory, in 1692, during the witchcraft epidemic. Knowing the hopelessness of the trials, he refused to plead, and was duly pressed to death (Cobbett’s State Trials, VI. 680).

When the peine forte et dure had become simply a punishment, it was sometimes replaced by a torture consisting of tying the thumbs together with whipcord until the endurance of the accused gave way and he consented to plead. This practice continued at least until so late as 1734. See an interesting essay by Prof. James B. Thayer, Harvard Law Review, Jan. 1892.