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“This Death Some Strong and Stout Hearted Man Doth Choose”: The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth-Century England”
Published online by Cambridge University Press: 18 August 2010
Extract
…he [that] is judged mute, that is dumme by contumacie…his condemnation is to be pressed to death, which is one of the cruellest deathes that may be: he is layd upon a table, and an other uppon him, and so much weight of stones or lead laide uppon that table, while as his bodie be crushed, and his life by that violence taken from him. This death some strong and stout hearted man doth choose, for being not condemned of felonie, his bloud is not corrupted, his lands nor goods confiscate to the Prince…
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References
1. In the case of high treason, non-capital felonies, and misdemeanors, the prisoner's silence was taken as a guilty plea. See discussion in Beattie, J. M., Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986, 337–38)Google Scholar.
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3. Applebee's Original Weekly Journal 14 January 1720/1.
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7. PRO ASSI 94/585; Gentleman's Magazine August 1735, 497.
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41. Proceedings 25–27 May 1721 http://www.oldbaileyonline.org/html_units/1720s/t17210525-66.html. Andrews was acquitted when her prosecutor failed to appear; the following year she was again acquitted at the Old Bailey for a theft when the prosecutor did not appear to testify (Proceedings 7–12 September 1722 http://www.oldbaileyonline.org/html_units/1720s/t17220907-61.html).
42. Proceedings 17–19 May 1716 http://www.oldbaileyonline.org/html_units/1720s/t17160517-41.html. In his subsequent trial, White “confess'd he shot the Woman” whom they had robbed, “but that he did not intend it, but only fir'd to frighten her.” Thurland and White were hanged.
43. Ibid.
44. The Confession and Execution of the Eight Prisoners suffering at Tyburn on Wednesday the 30th of August… (1676), 4. Parker was subsequently convicted and hanged.
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52. Proceedings 30 August–1 September 1727 http://www.oldbaileyonline.org/html_units/1720s/t17270830–45.html; Ordinary's Account 18 September 1727, 3.
53. According to one of Bacon's Apophthegms, “A Welshman being at a Sessions-House, and seeing the Prisoners hold up hands at the bar, related to some of his acquaintance there, Judges were good Fortune tellers, for if they did but look upon their hand, they could certainly tell whether they should live or die” ( Bacon, Francis, A Collection of Apophthegms, New and Old [1674], 29)Google Scholar.
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58. For all but the most minimal, not to mention inadequate, board and accommodation funded by public charity, prisoners were expected to pay their own way. They were also plagued with numerous other expenses such as “fees” extorted by jailers or “garnish” by other prisoners. See A Companion for Debtors and Prisoners … Together with a Particular Description of Newgate, the Marshalsea, the two Compters, Ludgate, the Fleet, and Kings Bench, with Reflections upon Prisons in general, and Proposals for regulating the whole (1699), 10–13Google Scholar ; Hell upon Earth: or the most Pleasant and Delectable History of Whit-tington's Colledge, Otherwise (vulgarly) called Newgate … (1703), 1–9Google Scholar ; Sheehan, W. J., “Finding Solace in Eighteenth-Century Newgate,” in Crime in England, 1550–1800, ed. Cockburn, J. S. (London: Methuen, 1977), 229–45Google Scholar ; Pugh, R. B., “Newgate between Two Fires. Part II,” Guildhall Studies in London History 4 (April 1979): 210–15Google Scholar.
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66. State Trials, 1:913–14.
67. Ordinary's Account 8 February 1720/1, 2, 3.
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70. Lives of the Most Remarkable Criminals, 1:109.
71. According to Beattie, “less than one per cent of defendants charged with grand larceny and only four per cent of those indicted for petty larceny pleaded guilty in the Surrey courts between 1722 and 1802”; this was at least in part because guilty pleas were “actively discouraged”(Crime and the Courts, 336). For more on this, as well as the “lawyer free” eighteenth-century trial as a “sentencing proceeding,” see Langbein, John, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), chapter 1, esp. 57–60.Google Scholar For the importance of character, see King, Peter, “Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800,” Historical Journal 27 (1984): 34–43CrossRefGoogle Scholar , and Beattie, , Crime and the Courts, 613.Google Scholar Cynthia Herrup has also noted the centrality of character in legal decision making, but sees the crucial criterion not as recidivism but whether the offense itself was perceived as “forgivable” or “unforgivable” ( The Common Peace: Participation and the Criminal Law in Seventeenth-Century England [Cambridge: Cambridge University Press, 1987], 197–200)Google Scholar.
72. The Mirror of Justices, ed. Whittaker, William Joseph and Maitland, Frederic William, Selden Society, vol. 7 (London: B. Quaritch, 1895), 157Google Scholar ; see also 173.
73. Wells, Charles L., “Early Opposition to the Petty Jury in Criminal Cases,” The Law Quarterly Review 30 (January 1914): 101.Google Scholar
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76. Indeed, defense witnesses in regular felony cases were not permitted to testify under oath until 1707; defendants themselves were denied this privilege until 1898 (Criminal Evidence Act, 61 & 62 Victoria, cap. 6); see discussion in Langbein, Origins of Adversary Criminal Trial, 14. In theory, of course, denying the oath to defendants and their witnesses was supposed to prevent them from jeopardizing their immortal souls; in practice, however, it tended to privilege the evidence brought by the prosecution over that of the defense (see Ibid., 51–53).
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80. Lives of the Most Remarkable Criminals, 3:62. Harris was hanged on 11 September 1728.
81. Hell upon Earth: or the most Pleasant and Delectable History of Whittington's Colledge … (1703), 10Google Scholar ; Eden, William, Principles of Penal Law (1771), 167Google Scholar.
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87. Langbein, , Torture and the Law of Proof, 75.Google Scholar
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94. Gerard, John, The Autobiography of a Hunted Priest, trans. Caraman, Philip, ed. Graham Greene (New York: Image Books, 1955), 79.Google Scholar
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99. Ibid., 54.
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102. Unhappy Marksman, i; Smith, Life and Times, 156.
103. Unhappy Marksman, 14, 26.
104. Ibid., 4, 25, 22.
105. Ibid., 25.
106. Smith, , Life and Times, 164.Google Scholar
107. Ibid., 165.
108. Unhappy Marksman, 21, 26, 22.
109. Ibid., 26–27.
110. Smith, , Life and Times, 168Google Scholar ; Unhappy Marksman, 29–30.
111. Lives of the Most Remarkable Criminals, 1:110.
112. Linebaugh, , “Tyburn Riot Against the Surgeons,” 115.Google Scholar For the popular association between “game” criminals and bridegrooms, see [Defoe, Daniel], Street-Robberies, Consider'd (1728), 52Google Scholar ; Fog's Journal 19 May 1737, 169.Google Scholar I discuss the connection between execution dress and symbolic claims of innocence at greater length in “God's Tribunal: Guilt, Innocence and Execution in England, 1670–1770,” Cultural and Social History (forthcoming).
113. Lives of the Most Remarkable Criminals, 3:30.
114. Lives of the Most Notorious Murderers and Robbers, 11.
115. Lives of the Most Remarkable Criminals, 2:158, 2:160–61.
116. Smith, , Life and Times, 281.Google Scholar Something of Burnworth's reputation and self-conception can be inferred from his nickname, “Young Frazier,” deriving from the fact that he had “spent a great deal of Time in Cudgel-Playing, Wrestling, &c. at the Ring in Moorfields kept by one Frazier” (Weekly Journal; or British Gazetteer 9 April 1726).
117. Ordinary's Account 8 February 1720/1, 5.
118. Ibid., 16 September 1741, 5.
119. Mist's Weekly Journal 26 March 1726; Weekly Journal; or British Gazetteer 9 April 1726; Lives of the Most Remarkable Criminals, 2:179.
120. Lives of the Most Notorious Murderers and Robbers, 67.
121. Lives of the Most Remarkable Criminals, 1:108.
122. Ordinary's Account 8 February 1720/1, 5.
123. See for instance the advertisement in the Ordinary's Account 12 July 1742, 20.
124. Proceedings 13–15 January 1720/1.
125. Lives of the Most Notorious Murderers and Robbers, 50.
126. Lives of the Most Remarkable Criminals, 2:141; Weekly Journal: or British Gazetteer 19 March 1726.
127. Weekly Journal; or British Gazetteer 19 March 1725/6; Ordinary's Account 14 March 1725/6, 4.
128. Lives of the Most Remarkable Criminals, 2:179.
129. Lives of the Most Notorious Murderers and Robbers, 65.
130. Measure for Measure, Act IV, Scene ii.
131. Ordinary's Account 8 February 1720/1, 4, 5.
132. Ibid., 22 December 1721, 5; Lives of the Most Remarkable Criminals, 1:112.
133. Ordinary's Account 14 March 1725/6, 4.
134. Lives of the Most Notorious Murderers and Robbers, 24
135. Ordinary's Account 14 March 1725/6, 2; Lives of the Most Notorious Murderers and Robbers, 24.
136. Ordinary's Account 8 February 1720/1, 2, 3.
137. Lives of the Six Notorious Street-Robbers, 379.
138. Lives of the Most Remarkable Criminals, 2:179.
139. Ibid., 1:102, 1:104.
140. Ordinary's Account 22 December 1721, 5.
141. Lives of the Most Remarkable Criminals, 1:109.
142. Simon Devereaux, “The Burning of Women Reconsidered,” in Crime, History and Societies, forthcoming.
143. The story of Walter Calverly, the inspiration for the 1608 play The Yorkshire Tragedy, sometimes attributed to Shakespeare, is a little garbled in this account, which claims that Calverly murdered his wife and seven children. According to the contemporary accounts that have survived, Calverly attempted to murder his wife, and succeeded in killing two of his three children. The relevant documents are reprinted in A Yorkshire Tragedy, ed. A. C. Cawley and Barry Gaines (Manchester: Manchester University Press, 1986), 94–112.
144. Annual Register, No. 13 (1770), 163–65.
145. Lives of the Most Notorious Murderers and Robbers, 63.
146. Lives of the Most Remarkable Criminals, 1:110.
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