IRISH LAW IN THE EIGHTEENTH CENTURY.
(vol. ix., p. 270.)
What has been mistaken by your correspondent for a piece of Irish barbarity, was, until the Act 12 Geo. III. c. 20., the usual punishment awarded by the law to culprits standing mute upon an arraignment of felony (that is, without speaking at all, or without putting himself upon God and the country). The judgment in such case was:
"That the man or woman should be remanded to the prison, and laid there in some low and dark room, where they should lie naked on the bare earth, without any litter, rushes, or other clothing, and without any garment about them, but something to cover their privy parts, and that they should lie upon their backs, their heads uncovered and their feet, and one arm to be drawn to one quarter of the room with a cord, and the other arm to another quarter, and in the same manner to be done with their legs; and there should be laid upon their bodies iron and stone, so much as they might bear, and more; and the next day following, to leave three morsels of barley bread without any drink, and the second day to drink thrice of the water next to the house of the prison (except running water), without any bread; and this to be their diet until they were dead. So as, upon the matter, they should die three manner of ways, by weight, by famine, and by cold. And the reason of this terrible judgment was because they refused to stand to the common law of the land."—2 Inst. 178, 179.
In the Year-Book of 8 Henry IV. the form of the judgment is first given. The Marshal of the King's Bench is ordered to put the criminals into "diverses measons bases et estoppes, que ils gisent par la terre touts nuds forsque leurs braces, que ils mettroit sur chascun d'eux tants de fer et poids quils puissent porter et plus," &c., (as above).
It appears also, from Barrington's Observations on the Statutes, that, until the above-mentioned act, it was usual to torture a prisoner by tying his thumbs tightly together with whipcord in order to extort a plea; and he mentions the following instances where one or more of these barbarous cruelties have been inflicted:
"In 1714 a prisoner's thumbs were thus tied at the same place" (Old Bailey), "who then pleaded; and in January, 1720, William Spigget submitted in the same manner after the thumbs being tied as usual, and his accomplice, Phillips, was absolutely pressed for a considerable time, till he begged to stand on his trial. In April, 1720, Mary Andrews continued so obstinate, that three whipcords were broken before she would plead. In December, 1721, Nathanael Haws suffered in the same manner by squeezing the thumbs; after which he continued under the press for seven minutes with 250 lbs., and then submitted."
Barrington also says in the text:
"As it is very unusual for criminals to stand mute on their trials in more modern days, and it was not unfrequent, if we go some centuries back in English History, it may not be improper to observe, that the occasion of its being then more common, was to prevent forfeitures, and involving perhaps innocent children in their parents' guilt. These forfeitures only accrued upon judgment of life and limb, and, to the disgrace of the crown, were too frequently levied with the utmost rigour. The sentence, however, hath continued to be put into execution till the late Act of Parliament (12 Geo. III. c. 20.) properly abolished it."
He mentions two other cases, one of which happened at the Sussex assizes, under Baron Thompson, and the other at Cambridge, in 1741, when Baron Carter was the judge. I do not think there are any more modern instances than these, for they are the only ones cited by counsel in General Picton's case, in justification of inflicting torture on a prisoner. (State Trials, vol. xxx.) The Marquis Beccaria, in an exquisite piece of raillery, has proposed this problem with a gravity and precision truly mathematical:
"The force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make himself guilty of a given crime."—1 Bl. Com. 327. n.
A prisoner standing mute at the present day would be sentenced to undergo the punishment that would be awarded to him, if found guilty of the crime laid to his charge.
Investigator.
Manchester, April 4, 1854.
Blackstone (book iv. chap. 25.) speaks of the cases in which punishment of "peine forte et dure" was inflicted according to the ancient law. It would occupy too great space to quote what he says on this point, and, therefore I must refer your correspondent to his work itself, where he will also find an inquiry into its origin. The punishment is described almost in the words of your correspondent's quotation; thus:
"That the prisoner be remanded to the prison from whence he came, and be 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."
Blackstone farther intimates that this punishment was abolished by statute 12 Geo. III. c. 20., which shows, of course, that it continued to be according to law for more than thirty years after the date mentioned by Abhba.
R. O.
The punishment, or more properly torture, alluded to by Abhba, was the "peine forte et dure," commonly applied in the early part of the last century to such criminals as refused to plead. Many died under it in order to save their estates, &c. from forfeiture to the crowns. In my forthcoming anecdotes of "The Eighteenth Century," several cases are cited from the newspapers of the time; but, as the MS. is now in the printer's hands, I cannot refer to them. Writing from memory, I think that the last case in which this torture was applied at the Old Bailey in London was in 1735, and reported in the London Magazine of that year. The "Press-yard" at Newgate derives its name from being the scene of these tortures.
Alexander Andrews.