Posted by Sara M. Butler, 21 November 2017.

During much of October, newspapers and twitter feeds across the UK were abuzz with news of the miniseries Gunpowder’s graphic depiction of death by peine forte et dure (“strong and hard punishment”). Reactions ranged from the suitably horrified to utter revulsion, with The Sun gleefully reporting that queasy viewers were vomiting in response to watching an elderly woman crushed to death on screen.[1] Historical consultants for the television show, Hannah Greig and John Cooper, drew on the death of Saint Margaret Clitherow of York (executed 25 March 1586), described in copious detail by her confessor John Mush in his “True Report,” in order to capture appropriately the minutiae of the experience. Despite their impassioned plea that the show’s violence was necessary in order to highlight the gritty reality of early modern England’s brutal treatment of Catholics, many would agree that the directorial decision strains the limits of good taste.[2]  Of course, for those of us in North America, myself included, we will have to wait until December to draw our own conclusions, when the miniseries will be aired on HBO. At the very least, the UK’s reaction has added to the hype surrounding what appears to be a Game of Thrones-esque version of the Guy Fawkes’ story, starring John Snow (ahem, that is, Kit Harrington) as Robert Catesby. Catesby was the brains behind the plot to blow up Parliament, removing the already paranoid King James I and VI and his heir, the Houses of Lords and Commons all in one fell swoop, a plot that thankfully went horribly awry.

Gunpowder’s gory portrayal of peine forte et dure provides me with the perfect opportunity to write a blog post exploring the origins of the medieval practice, the subject of my current book project. As we will discover, its medieval origins were much less shocking, and surprisingly, given its use to persecute Catholics in the early modern era, also very Catholic.

Peine forte et dure began its life as prison forte et dure (“strong and hard prison”), materializing for the first time in a 1275 statute recommended for “notorious felons … of openly evil name” who refused to submit a plea before the court.[3] England stood out as the one kingdom across medieval Europe that insisted defendants consent to being put on trial. Consent came in the form of a plea: if the defendant refused to plead — described in the record as “standing mute,” although many defendants were in fact quite loud about their refusal to plead — the court was incapacitated. It could not move forward with the case. Prison forte et dure, then, was a coercive measure, emphatically not a punishment, intended to persuade a defendant of the value of consenting to trial by a jury of his peers. Unfortunately for the historian, the statute fails to offer any enlightenment about what prison forte et dure may have consisted. Prison experiences came in a variety of flavors. For the wealthy, prison provided quality writing time, with the benefits of a drawing room and manservants for meal service and dressing. Because prisons expected their inmates to pay for the amenities supplied (bedding, meals, light, as well as fees for entrance and exit), for the less fortunate, prison meant sleeping on cold, damp floors, food only when charitable donations were provided, and leg irons if payment of the removal fee (le sewet) was beyond reach.[4] It is not too hard to imagine that prison forte et dure leaned towards the latter. Prison morphed into peine forte et dure later in the thirteenth century, although it is not entirely clear that the change in vocabulary signaled an accompanying change in practice. Trial records use a different language altogether when referencing the practice. They habitually describe the defendant being sent to prison to submit to the punishment of the statute (ad penam statuti), the diet (ad dietam), or simply penance (ad penitentiam).

That “the diet” refers also to peine forte et dure is made explicit by the earliest account of the practice, from the late thirteenth-century legal treatise Britton. In a dialogue on forgers “who will not put themselves upon their acquittal,” Britton advises they be “put to their penance until they pray to do it.” He explains penance accordingly:

And let their penance be this, that [they] be bare footed, ungirt and bareheaded, in the worst place in the prison, upon the bare ground continually night and day, that they eat only bread made of barley or bran, and that they drink not the day they eat; nor eat the day they drink, nor drink anything but water, and that they be put in irons.[5]

Nowhere in the statute do we find the crushing with weights that has come to be synonymous with peine forte et dure, and which so offended audiences last month when watching Gunpowder. The first clear reference to pressing turns up outside the legal record in Bartholomew Cotton’s Historia Anglicana.[6] Cotton recounts the 1293 Norfolk trial of fourteen men accused of atrociously and cruelly murdering sailors from Holland and Zeeland, then stealing their goods and setting fire to their ships. The incident resulted in the king’s justices sentencing thirteen to hang. One refused to submit to jury trial. He was remanded to prison to suffer the diet, but the Historia notes also “that he should sit naked save for a linen garment, on the bare ground, and he should be loaded with irons from the hands to the elbows, and from feet to the knees, until he should make his submission.”[7]

In this situation, the highly political nature of the crime warranted tweaking the usual process for the sake of expediency: with Dutch marine merchants threatening to sever trading links with England, a speedy show of justice was necessary. They could not afford to have it held up by a stubborn defendant playing the system. In all likelihood, the king’s justices generally assigned pressing when time was of the essence. English justices worked at breakneck speed; medieval prisons were habitually delivered in just one or two long, exhausting days’ of work, producing swift justice with trials of anywhere between fifteen and thirty minutes each. Pressing was part and parcel of that efficiency: the intensity of the pain produced a plea with much greater haste than did slow starvation and cramped surroundings. Indeed, the defendant might be prepared to plead before justices left town, thus helping to empty out the prisons to make badly needed space available for the persistent overflow of prisoners. Nonetheless, many others continued to be subjected to the diet without pressing long after 1293. For example, in 1363 when John Twapens of Londesborough (Yorks.) appealed Peter Syward of horse stealing and he refused to plead, justices sentenced Syward to the diet.[8]  Presumably, when justices could afford to be patient, the diet alone was sufficient to meet their needs.

The fact that justices regularly employed the term “penance” for the peine drives home the manifestly penitential nature of peine forte et dure, a practice involving solitude, fasting, penitential dress, and physical suffering – all key components of a penitential process that emphasized contemplation, humility, and asceticism. All of this is a useful reminder of the key role played by the clergy in the thirteenth-century legal system that devised the peine, a time when bishops typically acted as justices and even sheriffs. However, despite the increasing secularization of personnel, the practice of peine forte et dure does not seem to have lost its religious aura over time. Indeed a 1474 gaol delivery roll that details how the body of the defendant was transformed into a living representation of the True Cross underscores the persistently Catholic nature of the practice:

That the defendant be put in a room, and there defendant would be bare without any bedding or shirt or any other clothes or things, but only on the bare ground, and that he will be naked lying on his bare back without any other clothing around him except something to cover his member, and that his head be covered and the feet covered, and that one arm be pulled toward one corner of the room with a rope and the other arm toward another corner, and that the one foot be pulled toward one corner and the other foot toward the other corner, and that on the defendant’s body be put a piece of iron as heavy as he can suffer, and borne on him, and more, and the first day afterward the defendant will have three morsels of bread made of barley without any drink, and the second he will drink three times as much as he can of water that is nearest the prison door, not running water, without any bread, and this will be his diet until he be dead.[9]

In the scene from Gunpowder, pressing was not a powerful incentive to submit to jury trial, it was a death sentence.  When did the peine become a method of capital punishment? Since the time of Blackstone, the turning point has been marked by a 1406 arraignment of two indicted felons accused of robbery, a case that appears in the Yearbooks with a lengthy courtroom discussion full of conflict and lawyerly banter. In actual fact, their arraignment does not represent a crossroads in the history of the peine; yet, the dialogue between sergeants and pleaders recorded in the Year Book is ground-breaking, representing the first serious deliberation of the peine as a form of capital punishment. The conclusion reached was that the peine should not be placed in this category, although death was the usual result. The conversation that led them to this conclusion is instructive nonetheless and implies that the peine had shed its original function as a coercive measure some time before then.

In trying to determine what to do with these two indicted felons who adamantly refused to plead, Chief Justice William Gascoigne ordered the Marshal to send them to their penance, and return the goods to the appealer. Here, we are fortunate enough to have the chief justice define what precisely he meant by penance. The Yearbook explains, the defendants should be placed

in various low dungeons and that they should lie on the ground naked except for their arms, and that they should put upon each of them as much iron and weight as they could bear, so that they could not lift it, and that they should have no food or drink except the worst bread that could be found and from the worst place near the gaol door running water, and on the days they had bread they would have no water and vice versa, and that they should lie thus until they were dead.[10]

His decision prompted a prolonged discussion about to whom the stolen goods, in fact, belong. If the defendants were not attaint, should their goods be forfeit to the king? Representing the king’s best interests, Sergeant Robert Hill proclaimed that their contumacy should be interpreted as contempt of court: the judgment against them was to be sent to penance, and, as Gascoigne’s elaborate description makes clear, that penance means “penance unto death, so that it is a judgment of life and limb.” The older and wiser chief justice then interjected, offering a corrective: he announced that peine forte et dure “cannot be called a judgment of life and limb, for it may happen that they stay alive for several years, despite such a penance.”[11] Elaborating on Gascoigne’s explanation, Sergeant Richard Norton noted that only felony merits a judgement of life and limb. Thus, he reminded his colleagues that disobedience to the law was not a felony, nor had these two, in fact, been convicted of a felony. Sergeant William Skrene had the final word on the subject. He pointed out that when a defendant stands mute before an appeal of felony (as opposed to an indictment at the king’s suit) his silence takes on a different meaning. Royal justices must treat his case as undefended: thus, the accused is convicted, and his goods forfeit to the king.[12]

Let us fast-forward a hundred and eighty years: Margaret Clitherow, an Elizabethan recusant who may or may not have been pregnant at the time, was arraigned for harboring Catholic priests. Hoping to protect her family, she stood mute at her trial and was sentenced to peine forte et dure. Margaret’s execution did not take place in the depth of a prison as was normal, although it is not entirely clear why.  Rather, the execution took place at the Toll Booth on the Ouse Bridge, just yards from where she had been imprisoned, while still making an effort to maintain privacy.  John Mush described the venue as a “close house, as obscurely as was possible,” thus not the public scaffold on which the woman in Gunpowder was pressed.[13] Much like the woman in Gunpowder, Margaret was stripped naked in what Peter Lake and Michael Questier have described as an “obscene, virtually pornographic, shaming ritual,”[14] although as the medieval records would suggest, this was a typical part of the act, intended to enhance the defendant’s suffering and prompt humility before God.  Margaret was stretched by the limbs with ropes to prevent resistance, a sharp stone “as much as a man’s fist” was placed under her back — a twist that I have not encountered anywhere else — while a door was placed on her chest.[15] Her spine snapped when the jailer began to pile irons and stones on the board, weighing close to seven or eight hundred pounds, causing her ribs to “burst forth of the skin.”[16] The immensity of the weight, as well as the speed of her death mark a vast departure from the medieval practice and reflect the hostility towards English Catholics in the era ensuing the Jesuit crisis, and a group of justices determined to make a spectacle of her death in order to deter other English Catholics from imitating her model. Elizabeth I was so appalled by Margaret’s torturous death, that she wrote a public apology to the people of York, claiming that the manner of her death was inappropriate for a woman. Of course, Elizabeth’s regret does not signal the end of a tradition; instead, as Andrea McKenzie has observed, the English went on to perfect the practice, even creating special pressing rooms in prisons.[17]

Peine forte et dure is the scrunched up sock sticking to the corner of a bag of England’s dirty laundry. Should it be aired? Of course. Not doing so would simply lead us astray in our understanding of religious relations in Elizabethan England and the common law’s development of pleading procedures. Do we need to show it on television? I’ll get back to you on that matter in December when it finally airs in the USA.

Images:

Main image, The Gunpowder Plot Conspirators, after Heinrich Ulrich, used by permission of the National Portrait Gallery under a Creative Commons License, NPG 28145.

Second image, Copper plate published by Alexander Hogg in his 1780 edition of the Malefactor Register [Public Domain], via Wikipedia Commons

Third Image, An engraving of the fourth Ouse Bridge (1565-1810) [Public Domain], via Wikipedia Commons.

References:

[1] Ellie Genower, “Gruesome: Horrified Gunpowder viewers left ‘throwing up’ at extreme violence and torture scenes on BBC1 new drama,” (Oct. 22, 2017), https://www.thesun.co.uk/tvandshowbiz/4748669/horrified-gunpowder-viewers-left-throwing-up-at-extreme-violence-and-horror-torture-scenes-on-bbc1-new-drama/ , accessed 20 Nov. 2017.

[2] Hannah Greig and John Cooper, “The bloody truth – why BBC’s Gunpowder had to be so violent,” The Conversation (31 Oct. 2017), https://theconversation.com/the-bloody-truth-why-bbcs-gunpowder-had-to-be-so-violent-86264, accessed 20 Nov. 2017.

[3] 3 Edw. I, Statute of Westminster I (1275), c. 12. Statutes of the Realm, v. 1, 29.

[4] Jonathan Rose, “Feodo de Compedibus Vocato le Sewet: The Medieval Prison ‘Oeconomy’,” in Law in the City: Proceedings of the Seventeenth British Legal History Conference, ed. Paul Brand, Andrew Lewis and Paul Mitchell (London: Four Courts Press, 2005), 72-94.

[5] Francis Morgan Nichols, ed., Britton: An English Translation with Notes (Washington, D.C.: John Byrne and Co., 1901), 21 and 22.

[6] H.R.T. Summerson made this discovery. See his, “The Early Development of the Peine Forte et Dure,” in Law, Litigants and the Legal Profession, ed. E.W. Ives and A.H. Manchester (London: The Royal Historical Society, 1983), 119.

[7] H.R. Luard, ed., Bartholomaei de Cotton, Monachi Norwicensis, Historia Anglicana (Rolls Series, 1859; repr. Cambridge, 2012), 227-8.

[8] The National Archives, JUST 3/145, m. 36d.

[9] Year Book, Trin. Term, 1474, fo. 8a.

[10] A.K.R. Kiralfy, ed. A Source Book of English Law (London: Sweet & Maxwell, Ltd., 1957), 15.

[11] Kiralfy, Source Book of English Law, 16.

[12] Kiralfy, Source Book of English Law, 14-16.

[13] Peter Lake and Michael Questier, The Trials of Margaret Clitherow: Persecution, Martyrdom and the Politics of Sanctity in Elizabethan England (London: Continuum, 2011), 106.

[14] Lake and Questier, 4.

[15] Lake and Questier, 108.

[16] Lake and Questier, 108.

[17] Andrea MacKenzie, “ ‘This Death some Strong and Stout Hearted Man Doth Choose’: The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth- Century England,” Law and History Review 23.2 (2005): 279-313.