Page:Harvard Law Review Volume 5.djvu/285

269 THE JURT AND ITS DEVELOPMENT. 269 who will not put themselves on inquests for felonies with which they are charged before the justices at the king's suit, shall be put in strong and hard imprisonment {en le prison forte et dure) as refus- ing the common law of the land. But this is not to be under- stood of persons who are taken on light suspicion." This appears to be the first mention of what came to be known as the peine forte et dure. Of the long continuance of this practice until its abolition in 1772 (St. 12 Geo. III. c. 20, s. 1), and the tardy adoption then, and in 1827 (Stat. 7 & 8 Geo. IV. c. 28), of Bracton's opinion and the method of the cases in 1221 ; and of the strange and barbarous variations upon this penalty brought about by judges' or jailers' authority, I need not say much. A few words may be interesting. I have given all the lan- guage of the statute. In Britton (about 1 291-2), we find details which are not in the statute : " That they be barefooted, 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 (il soint en fyrges) that they be put in irons " (Nichols, i. 26-7). Fleta (lib. i. c. 34, s. 33), a book which the writer of Britton is supposed to have had in his hands, says nothing of putting in irons. In the middle of the next century it was found possible by a woman to live forty days under the penance (Pike, Hist. Crime, i. 211 ; 4 Bl. Com. 328); so that although a miracle is intimated, in saying of this woman that she lived " without food or drink," it has been sup- posed that they did not yet press the prisoners. But this is probably a mistake ; the penance may have been varied in the case just referred to. Pressing appears to be mentioned in the "Mirror;" and in the Cornish iter of 1302 we find what appear to be two cases of this sort, and one or two other cases of the graunt penance, in which the full details are not given. 1 The penance is described in the case of John de Dorley and Sir Ralph Bloyho (p. 510) thus : " that he should be put in a house on the ground in his shirt, laden with as much iron as he could bear {charge de tant de fer cum il poit porter), and that he should have nothing to drink on the day when he had anything to eat, and that he should drink water which came neither from foun- 1 Y. B. 30 & 31 Edw. I. 510. See also pp. 498, 502, 531.