Page:Harvard Law Review Volume 5.djvu/288

272 HAR VARD LA W RE VIE W. statute for it, some persuasions would be adopted to induce con- sent. It was so in Normandy; where the prisoner was put on short diet, and where the judges even authorized torture. 1 But the order of 12 19 may well have operated as a restraint upon these endeavors. The Statute of 1275 seems to have changed this. Something might now be added to the old imprisonment, and the description of it is found only in these words, forte et dure 2 It is certain that not until after this statute do we hear of the "penance," and then we find it very soon. As might be expected, it varies from time to time. We hear nothing of pressing at first ; but seem to find it as early as 1302, and, soon afterwards, this, with the whole matter of the "penance," is the subject of bitter complaint in the " Mirror," a book written in the first quarter of the fourteenth century. It is declared (c. 5, s. 1, pi. 54) an abuse to load {charge} a man with iron and put him in penance before he is attainted of felony. Again (c. 5, s. 4), the Statute West. I. is said to be abused in that the penance is pushed so far as to kill people without regard to their condition, when perhaps a man might acquit himself (se purra per cas aider et acquiter) otherwise than by the country ; and he ought not to be punished till he has been attainted. This book (c. 1, s. 9) declares chargeable with homicide those who kill a man in prison, when he is adjudged to penance by excess of " peine." z In entering now upon an effort to trace certain main feat- 1 Brunner, Schw. 474; Pal. Com. ii. 190; ib. i. 268. 2 For certain unlawful practices of sheriffs and jailers, in putting appellees of good fame en vile et dure prisone, see Stat. 5 Edw. II. c. 34 (131 1). 8 Palgrave (Com. ii. 189) cites a statement of 1293, in the " Chronicle " of the Priory of Dunstable (ii. 609) : Eodem anno justiciar ii itinerantes apud Eboracum valde rigide se gerebant ; el quendam nubilem . . . de tnultis feloniis arrestatum ad poenitentiam sta- tuti posuerunt, quia vere dictum patriae recusavit ; et mortuus est in prisona. Immediately after this a great robbery is mentioned, for which some knights and gentle- men were hanged; quidam autem eligentes poenitentiam secundum statutum mise. rabiliter defecerunt. It will be noticed that the Chronicler refers the penance to the statute. And so the " Mirror " Palgrave (Com. ii. 189) says that at about the period of the " Mirror " the chroniclers " record the fate of many criminals who perished under the inflic- tion." It should be mentioned that Palgrave, in saying that Bracton describes the pen- ance, doubtless suffers from a misprint; it should read Brittor. Bracton does not men- tion it. I ought at least to refer to the fact that Coke (2d Inst. 179) and Hale (PI. Cr. ii. 321-2, mention weighty considerations in support of their opinion that the peine forte et dure existed before the statute. What I have said would indicate that in a sense this may be so, but not in their sense.