Page:Harvard Law Review Volume 5.djvu/287

THE JURT AND ITS DEVELOPMENT. 27 1 all this in 1772, and the adoption then and in 1827 of the rules that had been advocated and a little followed five centuries before. 1 It is impossible to review these facts and not agree with Palgrave when he says : " It is a singular proof of the want of attention to any- general principles of legislation that a custom equally foolish and barbarous should have continued so long unaltered. And the sub- ject is one, among others, which shows that the English law . . . must forfeit many of the encomiums . . . which have so long passed current amongst us." 2 As regards the origin of these singular practices, I venture the conjecture that the prison forte et dure of the Stat. West. I. c. 12, in 1275, is to be understood by reference to what Palgrave calls the " temporary ordinance " (Com. i. 266) of the King's Council, in 1 2 19, after the Lateran Council. The judges, as we have seen, were then ordered, as regards the worst cases, to imprison, — but not in such a way as to imperil life or limb, — teneantur in prisona nostra et salvo cnstodiantur ; ita quod non incurrant periculum, vitae et membrorurn occasione prisonae nostrae* The later statute seems to refer to this restraint, and to take it off. It is the bad cases also that this statute purports to deal with, " notorious fel- ons and such as be openly of evil name ; " and the order is, that if these persons will not put themselves on the inquest, soient mises en la prison forte et dure. Apart from the order of 12 19, it was matter of course that those who, according to the ideas of the period, could not be tried without their own consent should still be kept in prison ; and it is highly probable that, without any formally adjudged guilty did not forfeit his lands. Mr. Pike's account ( Hist. Crime, it. 194-5; "• 2 ^3~5) °f Strangeways' sufferings in 1658, of Burnworth's, in 1726, under nearly four hundredweight, and of John Durant's case, in 1734, are horrible, but inter- esting. 1 " For the more effectual proceeding against persons standing mute on their arraign- ment for felony or piracy . . . s. I. If [he] shall stand rhute or will not answer directly to the felony or piracy . . . [he] shall be convicted, etc. . . . The court shall thereupon award judgement and execution . . . as if . . . convicted by ver- dict or confession. ..." (Stat. 12 Geo. III. c. 20) 8.1. "If any person, not having the privilege of peerage, being arraigned upon any indictment for treason, felony or piracy, shall plead thereto a plea of not guilty, he shall by such plea, without any further form be deemed to put himself upon the country for trial. ... s. 2. If any person, being arraigned for treason, felony, piracy or misdemeanor, shall stand mute of malice, or will not answer directly ... it shall be lawful for the court ... to order the proper officer to enter a plea of not guilty. . . ." (Stat. 7 & 8 Geo. IV. c. 28.) 2 See also Sir J. F. Stephen's observations, in Hist. Cr. Law, i. 300. 8 Rymer, Foed. (old ed.) 228.