It is difficult to explain the distinction drawn between ordinary felony on the one hand and treason and misdemeanours on the other. Perhaps the explanation is that the last, being much lighter offences, were never made the subject of trial by ordeal, and that treason being a crime endangering the very existence of the State, a sort of necessity compelled the judge to proceed in the most summary manner. No student of English History needs to be reminded that a trial for treason resulted almost as a matter of course in a conviction for treason. Peers of the realm had many privileges, but they were not exempt from the consequences of standing mute. Nor, as already noted, were women. Perhaps it were unreasonable to expect a criticism of the system from contemporary judges or text writers; but what they did say was odd enough; they did not condemn pressing, but they highly extolled the clemency of the law which directed the Court to reason with and admonish the accused before it submitted him to this dread penalty.
I shall now give some examples of practice. Fortunately (or unfortunately you may think as you read) we have at least one case recorded in great detail, though, curiously enough, it has escaped the notice of an authority so eminent as Mr Justice Stephen.
Margaret Clitherow was pressed to death at York on Lady Day, March 25th, 1586, and the story thereof was written by John Mush, secular priest, and her spiritual director. Margaret's husband was a Protestant, though his brother was a priest, and all his children appear to have been of the older faith. Accused of harbouring Jesuit and Seminary priests, of hearing mass, and so on, she was committed to York Castle, and in due time was arraigned in the Common Hall. In answer to the usual questions, she said that she would be tried "by God and by your own consciences," and refused to make any other answer. It was sheer obstinacy: she was a married woman, and she could have lost nothing by going to trial. But she coveted martyrdom, which everybody concerned appears, at first at any rate, to have been anxious to deny her. It was plainly intimated that if she would let herself be tried she would escape: "I think the country," said Clinch, the senior judge, "cannot find you guilty upon the slender evidence." The proceedings were adjourned, and the same night "Parson Whigington, a Puritan preacher," came and argued with her, apparently in the hope of persuading her to plead; but he failed to change her purpose; the next day she was brought back to the Hall. Something of a wrangle ensued between herself and Clinch, and in the end the latter seemed on the point of pronouncing sentence. Then Whigington stood up and began to speak; "the murmuring and noise in the Hall would not suffer him to be heard;" but he would not be put off, and "the judge commanded silence to hear him." He made a passionate appeal to the Court ("Did not perhaps God open the mouth of Balaam's ass?" is the somewhat ungracious comment of Father Mush.) "My lord," said he, "take heed what you do. You sit here to do justice; this woman's case is touching life and death, you ought not, either by God's law or man's, to judge her to die upon the slender witness of a boy;" with much more to the same effect. Clinch was at his wits' end, and went so far as to entreat the prisoner to plead in the proper form: "Good woman, I pray you put yourself to the country. There is no evidence but a boy against you, and whatsoever they (the jury) do, yet we may show mercy afterwards." She was moved not a whit; and then Rhodes, the other judge, broke in: "Why stand we all day about this naughty, wilful woman?" Yet once again she was entreated, but as vainly as before; it was evident that the law must take its course; and "then the judge bade the sheriff look to her, who pinioned her arms with a cord." She was carried back to prison through the crowd, of whom some said, "She received comfort from the Holy Ghost;" others, "that she was possessed of a merry devil." When her husband was told of her condemnation, "he fared like a man out of his wits, and wept so vehemently that the blood gushed out of his nose in great quantity." Some of the Council suggested that she was with child. There seems to have been some foundation for the remark, at any rate, Clinch caught eagerly at the idea. "God defend she should die if she be with child," said he several times, when the sheriff asked for directions, and others of sterner mould were pressing for her despatch. Kind-hearted Whigington tried again and again to persuade her; and the Lord Mayor of York, who had married her mother ("a rich widow which died before this tragedy the summer last"), begged her on his knees, "with great show of sorrow and affection," to pronounce the words that had such strange efficacy. It was all in vain, so at last even Whigington abandoned his attempt, and "after he had pitied her case awhile, he departed and came no more."
Her execution was fixed for Friday, and the fact was notified to her the night before. In the early morning of her last day on earth she quietly talked the matter over with another woman. "I will procure," the woman said, "some friends to lay weight on you, that you may be quickly despatched from your pain." She answered her that it must not be. At eight the sheriffs came for her, and "she went barefoot and barelegged, her gown loose about her." The short street was crowded with people to whom she dealt forth alms. At the appointed place, one of the sheriffs, "abhorring the cruel fact, stood weeping at the door;" but the other, whose name was Fawcett, was of harder stuff. He "commanded her to put off her apparel," whereupon she and the other woman "requested him, on their knees, that she might die in her smock, and that for the honour of womankind they would not see her naked." That could not be granted, but they were allowed to clothe her in a long habit of linen she had herself prepared for the occasion. She now lay down on the ground. On her face was a handkerchief. A door was laid upon her. "Her hands she joined towards her face"; but Fawcett said they must be bound, and bound they were to two posts, "so that her body and her arms made a perfect cross." They continued to vex the passing soul with vain words, but at last they put the weights on the door. In her intolerable anguish she gave but a single cry: "Jesu! Jesu! Jesu! have mercy upon me!" Then there was stillness; though the end was not yet. "She was in dying one quarter of an hour. A sharp stone as much as a man's fist put under her back, upon her was laid a quantity of seven or eight hundredweight to the least, which, breaking her ribs, caused them, to burst forth of the skin." It was now nine in the morning, but not till three of the afternoon were the braised remains taken from the press.
Stories of violence and cruelty serve not our purpose unless they illustrate some point, and I shall but refer to two other cases.
Major Strangeways was arraigned in 1658 (under the Commonwealth be it noted) for the murder of his brother-in-law. In presence of the coroner's jury he was made to take the corpse by the hand and touch its wounds, for it was supposed that, if he were guilty, these would bleed afresh. There was no bleeding, but this availed him nothing, and he was put on his trial at the Old Bailey in due course. He refused to plead, and made no secret of his motive; he foresaw conviction, and desired to prevent the forfeiture of his estate. He was ordered to undergo the peine forte et dure. The press was put on him angle-wise; it was enough to hurt, but not to kill, so the bystanders benevolently added their weight, and in ten minutes all was over. The dead body was then displayed to the public.
Again, in 1726, a man named Burnworth was arraigned at Kingston for murder. At first he refused to plead, but after being pressed for an hour and three-quarters with four hundredweight of iron, he yielded. He was carried back to the dock, said he was not guilty, and was tried, convicted, and hanged. There was at least one case in the reign of George II.—but enough of such horrors.