Here is the case. During the reign of Elizabeth, one Thomas Cobham, like unto many other good English Protestants, was "roving the seas, half-pirate, half knight-errant of the Reformation, doing battle on his own account with the enemies of the truth, wherever the service of God was likely to be repaid with plunder." (Froude, vol. viii. p. 459.) He took a Spanish vessel, (England and Spain being at peace,) with a cargo valued at eighty thousand ducats, killing many on board. After all resistance had ceased, he "sewed up the captain and the survivors of the crew in their own sails, and flung them overboard." Even in England this performance of Cobham was looked upon as somewhat irregular, and at the indignant requisition of Spain, he was tried in London for piracy. De Silva, the Spanish ambassador at the court of Elizabeth, wrote home an account of the trial. We now quote Mr. Froude, who being—as a learned English historian should be—perfectly familiar with the legal institutions of his country, and knowing full well that the punishment described by De Silva was never inflicted in England, is naturally shocked at the ignorance of this foreigner, and thus presents and comments upon his letter.
"Thomas Cobham," wrote De Silva, "being asked at the trial, according to the usual form in England, if he had any thing to say in arrest of judgment, and answering nothing, was condemned to be taken to the Tower, to be stripped naked to the skin, and then to be placed with his shoulders resting on a sharp stone, his legs and arms extended and on his stomach a gun, too heavy for him to bear, yet not large enough immediately to crush him. There he is to be left till he die. They will give him a few grains of corn to eat, and for drink the foulest water in the Tower." (Froude, vol. viii. p. 449, London ed. of 1863.)
It would not be easy to state the case in fewer words and more accurately than De Silva here puts it. Cobham was called upon to answer in the usual form, and "answering nothing" or "standing mute," "was condemned," etc. A definition of the offence and a description of its punishment by the well-known peine forte et dure were thus clearly presented; but even then Mr. Froude fails to recognize an offence and its penalty, perfectly familiar to any student who has ever read Blackstone or Bailey's Law Dictionary, and makes this astounding comment on De Silva's letter:
"Had any such sentence been pronounced, it would not have been left to be discovered in the letter of a stranger; the ambassador may perhaps, in this instance, have been purposely deceived, and his demand for justice satisfied by a fiction of imaginary horror." (Froude, vol. viii. p. 449, London ed. 1863.)
This unfortunate performance of Mr. Froude was received by critics with mirthful surprise, and, as a consequence, although the passages we have cited may be found, as we have indicated, in the London edition of 1863, they need not be looked for in later editions. On the contrary, we now learn from Mr. Froude (Scribner edition of 1870, vol viii. p. 461) that "Cobham refused to plead to his indictment, and the dreadful sentence was passed upon him of the peine forte et dure;" and thereto is appended an erudite note for the instruction of persons supposed to be unacquainted with English law, explaining the matter, and citing Blackstone, "book iv. chap. 25."
Ah! learning is a beautiful thing!
But, possibly it may be suggested, this dreadful punishment was rarely inflicted, and that fact may serve to excuse Mr. Froude? Not at all. Other instances of the peine forte et dure occurred in this very reign of Elizabeth, with whose history Mr. Froude is so very familiar. Here is one which inspires us with a feeling of compassion for the much-abused Spanish Inquisition, and proportionately increases our admiration of the "glorious Reformation."
Margaret Middleton, the wife of one Clitheroe, a rich citizen of York, was prosecuted for having harbored a priest in quality of a schoolmaster. At the bar (March 25th, 1586) she refused to plead guilty, because she knew that no sufficient proof could be brought against her; and she would not plead "not guilty," because she considered such a plea equivalent to a falsehood. The peine forte et dure was immediately ordered.
"After she had prayed, Fawcet, the sheriff, commanded them to put off her apparel; when she, with the four women, requested him on their knees, that, for the honor of womanhood, this might be dispensed with. But they would not grant it. Then she requested them that the women might unapparel her, and that they would turn their faces from her during that time.
"The women took off her clothes, and put upon her the long linen habit. Then very quickly she laid her down upon the ground, her face covered with a handkerchief, and most part of her body with the habit. The dure (door) was laid upon her; her hands she joined toward her face. Then the sheriff said, 'Naie, ye must have your hands bound.' Then two sergeants parted her hands, and bound them to two posts. After this they laid weight upon her, which, when she first felt she said, 'Jesu, Jesu, Jesu, have mercye upon mee,' which were the last words she was heard to speake. She was in dying about one quarter of an hour. A sharp stone, as much as a man's fist had been put under her back; upon her was laied to the quantitie of seven or eight hundred weight, which, breaking her ribbs, caused them to burst forth of the skinne."
This question of the peine forte et dure naturally brings us to the consideration of a kindred subject most singularly treated in Mr. Froude's pages. If the constant use of