(vol. ix., p. 270.)
What has been mistaken by your correspondent for a piece of Irish
barbarity, was, until the Act 12 Geo. III. c. 20., the usual punishment
awarded by the law to culprits standing mute upon an arraignment of felony
(that is, without speaking at all, or without putting himself upon God and
the country). The judgment in such case was:
"That the man or woman should be remanded to the prison, and laid there
in some low and dark room, where they should lie naked on the bare
earth, without any litter, rushes, or other clothing, and without any
garment about them, but something to cover their privy parts, and that
they should lie upon their backs, their heads uncovered and their feet,
and one arm to be drawn to one quarter of the room with a cord, and the
other arm to another quarter, and in the same manner to be done with
their legs; and there should be laid upon their bodies iron and stone,
so much as they might bear, and more; and the next day following, to
leave three morsels of barley bread without any drink, and the second
day to drink thrice of the water next to the house of the prison
(except running water), without any bread; and this to be their diet
until they were dead. So as, upon the matter, they should die three
manner of ways, by weight, by famine, and by cold. And the reason of
this terrible judgment was because they refused to stand to the common
law of the land."--2 _Inst._ 178, 179.
In the Year-Book of 8 Henry IV. the form of the judgment is _first_ given.
The Marshal of the King's Bench is ordered to put the criminals into
"diverses measons bases et estoppes, que ils gisent par la terre touts nuds
forsque leurs braces, que ils mettroit sur chascun d'eux tants de fer et
poids quils puissent porter et plus," &c., (as above).
It appears also, from Barrington's _Observations on the Statutes_, that,
until the above-mentioned act, it was usual to torture a prisoner by tying
his thumbs tightly together with whipcord in order to extort a plea; and he
mentions the following instances where one or more of these barbarous
cruelties have been inflicted:
"In 1714 a prisoner's thumbs were thus tied at the same place" (Old
Bailey), "who then pleaded; and in January, 1720, William Spigget
submitted in the same manner after the thumbs being tied _as usual_,
and his accomplice, Phillips, was absolutely pressed for a considerable
time, till he begged to stand on his trial. In April, 1720, Mary
Andrews continued so obstinate, that three whipcords were broken before
she would plead. In December, 1721, Nathanael Haws suffered in the same
manner by squeezing the thumbs; after {428} which he continued under
the press for seven minutes with 250 lbs., and then submitted."
Barrington also says in the text:
"As it is very unusual for criminals to stand mute on their trials in
more modern days, and it was not unfrequent, if we go some centuries
back in English History, it may not be improper to observe, that the
occasion of its being then more common, was to prevent forfeitures, and
involving perhaps innocent children in their parents' guilt. These
forfeitures only accrued upon judgment of _life and limb_, and, to the
disgrace of the crown, were too frequently levied with the utmost
rigour. The sentence, however, hath continued to be put into execution
till the late Act of Parliament (12 Geo. III. c. 20.) properly
abolished it."
He mentions two other cases, one of which happened at the Sussex assizes,
under Baron Thompson, and the other at Cambridge, in 1741, when Baron
Carter was the judge. I do not think there are any more modern instances
than these, for they are the only ones cited by counsel in General Picton's
case, in justification of inflicting torture on a prisoner. (_State
Trials_, vol. xxx.) The Marquis Beccaria, in an exquisite piece of
raillery, has proposed this problem with a gravity and precision truly
mathematical:
"The force of the muscles and the sensibility of the nerves of an
innocent person being given, it is required to find the degree of pain
necessary to make himself guilty of a given crime."--_1 Bl. Com. 327.
n._
A prisoner standing mute at the present day would be sentenced to undergo
the punishment that would be awarded to him, if found guilty of the crime
laid to his charge.