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Chapter 4 argues in favor of seeing medieval justice as penitential justice with the ultimate goal of spiritual reform. Medieval society blurred the lines between sin and crime, penance and punishment. Recognizing this distortion is how one makes sense of peine forte et dure. Pain as an experience is key to the performance of penance. Through physical pain, the disordered soul is righted and the sinner gains entrance to heaven. Fasting, seclusion, denial of luxuries – these are all ascetic practices with a long association with Christian penance. Even pressing with weights appears as a penitential practice in numerous sermon stories from the era. Exposing the uncooperative sinner to an ascetic lifestyle, even if it was against his wishes, was in the best interests of the defendant’s soul. As a coercive measure, it helped to begin the process of purging his sin before he agreed to place himself in the hands of the jury. As such, he displayed to jurors his willingness to reform his ways and reconcile with the Christian community.
Resistance to the state is the theme of the final chapter. Chapter 7 contends that reluctant defendants were rejecting the trial jury; however, it was not the mechanism they resented, but rather what it symbolized. Today, the jury stands as an emblem of rationalism and modernity. That is not how the medieval world saw it. After Henry II, English rule meant government by jury; in this atmosphere, the jury – whose membership tended to be highly selective – represented not freedom, equality, or modernity, but royal overreach. Standing mute was one among a number of weapons belonging to the peasantry’s arsenal to protest the growing power of the king, whose authority expanded at the expense of his subjects’ rights. Passive noncooperation typified peasant strategies of resistance, which included also failure to perform labor services, ignoring summons to appear for jury duty, and rent strikes, as well as listening to outlaw tales, applauding the sermons of rebellious priests, and venerating at the shrines of political martyrs. These were the more usual weapons of popular resistance. Standing mute should take its place in this category.
During much of October, 2017, newspapers and Twitter feeds across the United Kingdom were abuzz with news of the mini-series Gunpowder’s graphic depiction of death by peine forte et dure.2Gunpowder is a Game of Thrones-esque version of the Guy Fawkes story, in which a group of Catholics plotted to blow up parliament, removing the already paranoid King James I and VI, his heir, as well as the Houses of Lords and Commons all in one fell swoop, a plot that thankfully went horribly awry.
Martyrdom is the running thread in this study. Chapter 6 turns its focus to the definitive martyr, Jesus Christ, whose stoic behavior at the Passion established a way forward for those who stood mute. When Herod summoned Jesus before him, the divine prisoner also stood mute. His silence functioned as a means of protest, an interpretation familiar to English communities, who watched the drama unfold annually in the mystery plays. Similarly, depictions of the ancient martyrs also presented silence and passivity as models for resistance. These narratives reinforced the notion that only a heroic martyr stood mute in a court of common law. The world of literature also had much to say on the subject of peine forte et dure. Analysis of works such as Chasteau d’Amour, the Seven Sages of Rome, and Bevis of Hampton all clarify that hard prison was a sentence inflicted by an unmerciful, and often distinctly unchristian, authority. Nonetheless, these stories place peine forte et dure in a positive light: the intense suffering supplies the falsely accused with the ideal surroundings to perform imitatio Christi (imitation of Christ), thus assuring his salvation.
Consent is the issue at the heart of Chapter 3. Peine forte et dure was necessary simply because the English court system required a defendant’s consent before he might be submitted to trial by jury. Without his consent, justices could not proceed to trial. This chapter asks why did English justices see consent as vital, especially when other Europeans did not? It explains that consent was a traditional part of English legal culture, signaled by a defendant’s choice of proofs (compurgation, ordeals, battle). In choosing a method of proof, an accused felon recognized the court’s authority in the matter, and consented to abide by its decision. With the transition from proofs to trial (by jury) that began under Henry II and coalesced with Lateran IV’s abandonment of the ordeal, a defendant’s rights were whittled away. These changes took place against the backdrop of the twelfth-century legal revolution that championed a defendant’s natural rights to legal protection. Thus, while the English may have protested the loss of choice through silence, justices needed a solution that respected both English heritage and a defendant’s rights. That solution was peine forte et dure.
Chapter 1 examines precisely what peine forte et dure entailed during the Middle Ages. Paying special attention to the vocabulary related to peine forte et dure in the legal record, this chapter argues that “hard prison” (prison forte et dure) should be considered an umbrella term that includes a wide variety of practices, such as fasting, cold and nakedness, seclusion, and sometimes pressing. The make-up of the punishment depended on the nature of the crime and the defendant’s conduct at court. The traditional narrative sees an evolution in the practice from prison forte et dure, described as a starvation diet and miserable prison conditions, intended as a coercive measure to encourage the defendant to plead, gradually superseded by peine forte et dure, pressing with stones and irons unto death. The medieval evidence, instead, shows that some silent defendants fasted while others were pressed, and at no point did the practice shed its coercive nature altogether. This chapter also locates the practice’s origins in the church’s penitential practices, specifically in the public penance (paenitentia publica) assigned to murderers, political rebels, and other serious crimes.
Why would anyone choose to stand mute and risk peine forte et dure? Chapter 5 looks to the evidence of the jail deliveries to re-examine the leading explanations put forward by historians. From the time of Blackstone, historians have rationalized a defendant’s silence as a means to rescue his heir’s birthright from felony forfeiture: if he dies unconvicted, his lands (although not his chattels) will be safe from the Crown’s escheator. Thus, a man who feared conviction chose silence in order to protect his family’s welfare. The second most popular theory presumes that the defendant was in fact guilty. Knowing what awaited a felony conviction, the silent defendant opted for a more private form of death that was less humiliating personally and for his family. This chapter tests these theories against the medieval evidence, while also investigating other reasons why accused felons chose to stand mute. In particular, this chapter argues that standing mute was a practical delaying tactic, often combined with other means of postponing trial, such as: claiming benefit of clergy, challenging jurors, applying for the king’s pardon, turning approver, and even sometimes pleading the belly.
In 1586, after prolonged deliberation and with great reluctance, Justices Clench and Rhodes, sitting in judgment at the Castle of the Common Hall in York, ordered the execution of the recusant, Margaret Clitheroe (also, Clitherow). Her offense was a distinctly post-Reformation one: she was charged with harboring Catholic priests, a crime for which she was most surely guilty, having constructed a hidden room in her neighbor’s home where multiple well-known Catholic dissenters had taken refuge. Harboring of this kind was also a newly legislated felony, having been enacted at parliament a year prior. The evidence poised against her was slim, resting principally on the confession of a young Flemish boy schooled in her home, whom city authorities had browbeaten and manhandled until he agreed to guide them to the concealed room. The presence of chalices and vestments there hinted at the enormity of Margaret’s wrongdoing. Yet, not having encountered an actual priest in residence, authorities had only the boy’s testimony to substantiate that Margaret had in fact sheltered priests there in the past. If she had been tried, in all likelihood, as the justices continually assured her, she would have been acquitted.
In medieval England, a defendant who refused to plead to a criminal indictment was sentenced to pressing with weights as a coercive measure. Using peine forte et dure ('strong and hard punishment') as a lens through which to analyse the law and its relationship with Christianity, Butler asks: where do we draw the line between punishment and penance? And, how can pain function as a vehicle for redemption within the common law? Adopting a multidisciplinary approach, this book embraces both law and literature. When Christ is on trial before Herod, he refused to plead, his silence signalling denial of the court's authority. England's discontented subjects, from hungry peasant to even King Charles I himself, stood mute before the courts in protest. Bringing together penance, pain and protest, Butler breaks down the mythology surrounding peine forte et dure and examines how it functioned within the medieval criminal justice system.
Peine forte et dure was the sentence imposed on suspected felons who stood mute, that is, who refused to plead. Chapter 2 speaks to the process of standing mute in the courts of medieval England, with the underlying goal of assessing the challenges an accused felon faced in negotiating the legal process sufficiently to develop a solid defense strategy. Not only were there multiple means of standing mute, but silence only sometimes functioned as a refusal to plead. Distinctions were made based on venue, process, and the nature of the charge. Historians have often assumed that medieval justices, like their early modern counterparts, did not permit silence upon appeal or treason. The medieval evidence demonstrates that these rules developed late and were enforced at the discretion of the justices. Gender also mattered in the formulation of a defense strategy: women rarely opted to stand mute, but those who did were in dire straits. The one redeeming feature for the defendant is that the king’s justices acted as counsel for the defendant, meaning that they were tasked with explaining the intricacies of pleading procedure to the defendant so that he might make an informed decision.
Just how violent was medieval Europe? Traditionally, historians have depicted the Middle Ages as an era of brute strength and underdeveloped empathy, leading to high rates of violence. Yet, the evidence to support this interpretation is highly flawed. While we cannot measure medieval rates of violence with enough accuracy to draw medieval-modern comparisons, we do know that medieval Europeans deemed some forms of violence as not only necessary, but laudable. God’s wrath was the archetype of principled violence wielded by a righteous authority. Spectacles of justice in the form of staged executions, shaming rituals, or torture procedures, when enacted by the church or the state, fell neatly in line with this view of violence as a purgative, removing sin from society before it infected others. This ideology was imposed also on the family, where communities urged patriarchs to govern their dependents with a firm hand. Nevertheless, violence also had its limits. As king in his own home, a patriarch’s conduct might still cross the line between chastisement and cruelty. The law generally sided with figures of authority, but in practice the courts protected both ends of the social and familial hierarchy from abuse.