And now the Neck-verse was free to everyone were he or were he not in holy orders, and he claimed the privilege after conviction, but in the reign of Henry VII. (1487) an important change was made. A person who claimed clergy was to be branded on the crown of his thumb with an "M" if he were a murderer, with a "T" if he were guilty of any other felony; if he "prayed his clergy" a second time this was refused him, unless he were actually in orders. Of course the mark on the thumb was to record his previous escape from justice. It was with this "Tyburn T" (as it was called in Elizabethan slang) that Ben Jonson was branded. It is only within the last few years that careful Mr Cordy Jeaffreson has exhumed the true story from the Middlesex County Records. The poet quarrelled and fought a duel with Gabriel Spencer, an actor, and probably a former colleague. The affair came off at Shoreditch. Jonson, with his rapier, which the indictment (for a reason explained in the chapter on "Deodands") values at three shillings, briskly attacked his opponent, and almost immediately gave him a thrust in the side, whereof Spencer died then and there. Ben was forthwith seized and thrown into prison. Whilst waiting his trial he said that spies were set on him, but he was too much for them, and afterwards all the judges got from him was but "Ay" and "No." Why spies should have been necessary in so plain a case is far from clear. It is more significant that a devoted priest succeeded in converting him for the time to Roman Catholicism, and he afterwards confessed to Drummond of Hawthornden that he had come near the gallows. However, what he said, or did not say, is of little weight as compared with the evidence of contemporary judicial records. The fact is clear that the poet of Every Man in his Humour, the cunning artist of Queen and Huntress, and Drink to me only with thine Eyes, had a true bill found against him by the grand jury, who sat, by the way, in a tavern, for as yet Hicks Hall, the predecessor of the Session's-House on Clerkenwell Green, was not.
In October 1598, he was taken to the Old Bailey to stand his trial. He pleaded guilty, asked for the book, read like a clerk ("Jonson's learned sock," forsooth!), and as the strangely abbreviated Latin of the record has it, "sign' cum lra' T et del," that is, marked with the letter "T," and set at large to repair to "The Sun," "The Bolt," "The Triple Tun," or some other of those dim, enchanting Elizabethan taverns, there to give such an account of the transaction as sufficed to dissemble it till this age of grubbers and dictionaries wherein you are destined to nose every ancient scandal as you go up the staircase of letters. It has been suggested that the officer, moved to inexplicable tenderness, touched him with a cold iron. The only ground for this is that Dekker, in his savage Satiro Mastix; or, The Untrussing of the Humourous Poet, makes no reference to the "Tyburn T." One fancies that Ben speedily acquired a trick of carrying his hand so that the mark was not readily seen, or he may have cut or burnt it out as others did. All the same, the best evidence shows it to have been there.
In the reign of James I. another change was made. Women got the benefit of clergy in certain cases, and afterwards they were put on the same footing as men. Then in 1705 the necessity for reading was abolished, and in 1779 so was branding.
But another process was going on all this time. A great and ever-increasing number of crimes were declared to be without benefit of clergy. The selection was somewhat capricious. Among the exempted felonies were abduction with intent to marry, stealing clothes off the racks, stealing the kings' stores, and so on. Naturally the whole subject fell into inextricable confusion, and when it was abolished in 1827, even pedants must have given a sigh of relief. One detail escaped the reformer: since the time of Edward VI. every peer ("though he cannot read," saith the statute) enjoyed a privilege akin to that of clergy, and it was not till 1841 that this last vestige of the system vanished from the statute-book. I will only add that, in its details, "benefit of clergy" was even more grotesque and fantastic than it has here been possible to set forth.
PEINE FORTE ET DURE
In England during many centuries a prisoner was called to the bar before trial and enjoined to hold up his right hand, by which act he was held to admit himself the person named in the indictment. The clerk then asked him, "How say you, are you guilty or not guilty?" If he answered, "Not guilty," the next question was: "Culprit, how will you be tried?" to which he responded, "By God and my country." "God send you a good deliverance," rejoined the official, and the trial went forward. If the accused missed any of these responses, or would not speak at all, and if the offence were treason or a misdemeanour, his silence was taken for confession of guilt, and sentence was passed forthwith. If the charge were felony, a jury was empanelled to try whether he stood "mute of malice," or "mute by the visitation of God." If this last were found, the trial went on; if the other, he was solemnly warned by the judges of the terrible consequences summed up by Lord Coke (trial of Sir Richard Weston in 1615, for Sir Thomas Overbury's murder) in the three words—onere, frigore, et fame. The proceedings were most commonly adjourned to give him time for reflection; but if after every exhortation he remained obdurate, then he was adjudged to suffer the peine forte et dure. The judgment of the Court was in these words: "That you return from whence you came, to a low dungeon into which no light can enter; that you be stripped naked save a cloth about your loins, and laid down, your back upon the ground; that there be set upon your body a weight of iron as great as you can bear—and greater; that you have no sustenance, save on the first day three morsels of the coarsest bread, on the second day three draughts of stagnant water from the pool nearest the prison door, on the third day again three morsels of bread as before, and such bread and such water alternately from day to day; till you be pressed to death; your hands and feet tied to posts, and a sharp stone under your back."
There is but one rational way to discuss an institution of this sort. Let us trace out its history, for thus only can we explain how it came to have an existence at all. For the prisoner himself there was usually a very strong reason why he should stand mute. If he were convicted of felony his goods were forfeited; while in case of capital felony, the result of attainder was corruption of blood so that he could neither inherit nor transmit landed property. Often he must have known that conviction was certain. Had he fondness enough for his heirs—children or other—to make him choose this hideous torture instead of milder methods whereby the law despatched the ordinary convict from this world? Well, very many underwent the punishment. Between 1609-1618 the number was thirty-two (three of them women) in rural Middlesex alone. "Mortuus en pen' fort' et dur'," so the clerk wrote for epitaph against each name, and something still stranger than the penalty itself is revealed to us by an examination of the original records. Many of the culprits were evidently totally destitute, and these underwent the peine forte et dure from stupidity, obstinacy, or sheer indifference to mortal suffering and death.
The custom of pressing did not obtain its full development at once, and there is some difficulty as to how it began. A plausible explanation is given in Pike's "History of Crime," and is supported by the authority of the late Mr Justice Stephen. At one time a man charged with a serious offence was tried by ordeal; but by paying money to the king, it was possible to get the exceptional privilege of a trial by jury. Thus, when the accused was asked how he would be tried, his answer originally ran, "by God" (equal to by ordeal), or "by my country" (equal to by jury), since to put yourself on the country meant to submit yourself to this last. But trial by ordeal was abolished about 1215, and the alternative was a privilege to be claimed, not a necessity to be endured. Offenders soon discovered that by standing mute and declining to claim this privilege, they put the Court in a difficulty. The ideas of those distant days were simple exceedingly, and a legal form had strange force and efficacy. To put a prisoner before a jury without his consent was not to be thought of; but how to get his consent? At first the knot was rather cut than loosened. Thus, in some cases, the accused were put to death right off for not consenting to be tried "according to the law and custom of the realm." Then this was held too severe, and under Edward I., in the proceedings of the Parliament of Westminster, occurs the earliest definite mention of the punishment. It was enacted that notorious felons refusing to plead should be confined in the prison forte et dure. Here they went "barefooted and bareheaded, in their coat only in prison, upon the bare ground continually night and day, fastened down with irons," and only eating and drinking on alternate days as already set forth. It was bad enough, no doubt, but not of necessity fatal. So the authorities perceived, and they again cut the knot by a policy of starvation. So one infers from the case of Cecilia, wife of John Rygeway, in the time of Edward III. Cecilia was indicted for the murder of her husband; she refused to plead. Being committed to prison, she lived without meat or drink for forty days; and this being set down to the Virgin Mary, she was thereupon allowed to go free. This procedure seems to have been found too slow, and the increase of business at the assizes seemed like to end in a hopeless block. Were the judges to encamp in a country town while the prisoners made up their mind as to pleading? Something was wanted to "mend or end" the stubborn rascals; and under Henry IV., in the beginning of the fifteenth century, the "prison" forte et dure became the "peine" forte et dure: with the consequence that, if the accused declined to plead, there was an end of him in a few hours, the provision of bread and water being a mere remnant of the older form of sentence. This procedure lasted till 1772, when the 12 Geo. III., c. 20 made "standing mute in cases of felony equivalent to conviction." In 1827 it was enacted by 7 and 8 Geo. IV., c. 28, "that in such cases a plea of not guilty should be entered for the person accused." The curious formal dialogue between the clerk and the prisoner was abolished that same year. Something stronger than exhortation was now and again used before the obdurate prisoner was sentenced to pressing, thus at the Old Bailey in 1734, the thumbs of one John Durant were tied together with whipcord, which the executioner strung up hard and tight in presence of the Court; he was promised the peine forte et dure if this did not answer, but upon a little time being given him for reflection, he speedily made up his mind to plead not guilty.