… 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 …
Sir Thomas Smith, De Republica Anglorum (1583)
This thing call’d Pain
Is (as the Learned Stoicks maintain)
Not bad simpliciter, nor good,
But meerly as tis understood
Samuel Butler, Hudibras, Part II (1664)
At the sessions held on 13 January 1721 at the Old Bailey courthouse in London, two accused highwaymen, Thomas Phillips alias Cross and William Spigget alias Spiggot, impeded the ordinarily expeditious course of eighteenth-century criminal justice when they insisted on “standing Mute”—that is, refusing to plead to their indictments—”till they should have the Money, Horses, Accoutrements, and other things which were taken from them when they were Apprehended returned to them.” Not only was their request denied but, when after several stern warnings they “persisted in their Obstinacy,” the court threatened the two with peine forte et dure, or “pressing”—the punishment meted out to those men and women charged with capital felonies, excepting high treason, who refused to plead to their indictments.[1] In order to “more effectually … convince them of their Folly and Error” the judge ordered that the dreadful, not to mention bizarre, sentence be read out in full:
That the Prisoner shall be sent to the Prison from whence he came, and put into a mean House, stopped from Light, and there shall be laid upon the bare Ground without any Litter, Straw or other Covering, and without any Garment about him, saving something to cover his Privy Members and that he shall lie upon his Back, and his Head shall be covered, and his Feet bare, and that one of his Arms shall be drawn with a Cord to one side of the House, and the other Arm to the other side, and that his Legs shall be used in the same manner, and that upon his Body shall be laid so much Iron and Stone as he can bear, and more, and that the first Day after he shall have three Morsels of Barley Bread, without any Drink, and the second Day he shall drink so much as he can three times of the Water which is next the Prison Door, saving running Water, without any Bread: and this shall be his Diet until he die….
But the two men, “still peremptorily refusing” to yield, despite “all the Admonition that could be given them” and the preliminary punishment of having their thumbs tied tightly together with a cord (in hopes that the pain would induce them to plead), were taken back to Newgate prison in order to “be prest to Death, as the Law directs.” The sight of the “Press Room” proved too much for Thomas Cross, who “desired to be carried again to the Bar, saying he would Plead.”[2] In “the Expectation he would have by this Time chang’d his Resolution,” Spiggot was also brought back but however “remain’d inflexible, and insulted the Court.”[3] (His exact words are not recorded.) He was then returned to Newgate, stripped and chained spread-eagled and face up on the prison floor, while iron weights were laid on his bare chest. Laboring under a weight of 350 pounds, Spiggot “endur’d the torture of the Press … for about half an hour”; when an extra fifty pounds were added, “he alter’d his Mind, and said he would Plead.”[4] He was brought back to the Old Bailey where he pleaded not guilty.
Spiggot (along with his confederate Cross) was subsequently convicted and hanged, but contemporaries were naturally far less impressed with such commonplaces than by the fact that they had been preceded by his having been “pressed.” “It is observable,” remarked one newspaper, “that the like Instance hath not been for a great many Years past, and perhaps not in the Memory of any Man living.”[5] It had probably been at least twenty years since the peine forte et dure had been imposed: in 1699, a man at the Surrey assizes in Kingston had been subjected to the press before he would plead, as was the robber James Parker, eventually condemned at the Old Bailey in 1676.[6] Earlier in the seventeenth century two accused murderers had been pressed to death: George Strangwayes in 1658 and Henry Jones in 1672. (In a more famous case, in Salem, Massachusetts in 1692, Giles Corey had died under the peine after refusing to plead to charges of witchcraft.) Yet in relatively short order two young highwaymen would follow Spiggot to the press—Nathaniel Hawes, arraigned at the Old Bailey later that same year, and Edward Burnworth at the Kingston assizes in 1726; like Spiggot, they too eventually submitted to their trials, were condemned and executed. And in 1735 at the Sussex assizes in Lewes, the accused robber and murderer John Weekes, “a pretended Dumb Man,” was “gradually pressed to Death, continuing obstinately Dumb to the last Minute.”[7] This is by no means an exhaustive list; nor does it include the not insignificant number of prisoners who, like Spiggot’s confederate Cross, had broadcast their determination to “stand mute” and whose thumbs had been accordingly tied, but who had in the end thought better of their resolution.[8] Moreover, the peine forte et dure continued to be deployed as a threat for recalcitrant prisoners until 1772 when, much to the relief of early nineteenth-century commentators, “this act becoming barbarous to Englishmen,” refusal to plead in felony cases was taken as equivalent to a guilty verdict: “an alteration that does honour to modern times.”[9] Finally, an Act of 1827 ruled that “standing mute” be henceforth taken as a plea of not guilty.[10]
Traditionally, scholars as well as nineteenth-century jurists have viewed the peine forte et dure as a “stupid, needless barbarity,” an embarrassing legal anachronism significant largely insofar as it took so long to be abolished.[11] The peine has been problematic principally in light of the much-vaunted English abhorrence to judicial torture—for, while pressing was not technically torture, as it was not employed to extract evidence or confessions, it nonetheless bore an uncomfortable resemblance to it.[12] Interestingly, less overt discomfort has been expressed in relation to the other significant implication raised by this practice; that is, a persistent popular resistance to that most sacred of English institutions, trial by jury. Although several writers have suggested that rejection of jury trial—or of the tribunal generally—as well as other motives (pride, fear of an ignominious death, desire to protect accomplices, etc.) played some role,[13] scholars have conventionally explained the motivations for undergoing the press largely in terms of the prisoner’s determination to avoid a criminal conviction that would prevent him from transmitting his estate to his heirs. As Sir Thomas Smith, writing in 1583, famously expressed it: “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….”[14] Yet this fails to explain why numerous ordinary seventeenth- and eighteenth-century men, most of whom had little property and no lands, would have subjected themselves to such a horrific ordeal.
This article explores the popular attitudes and beliefs that help make sense of this otherwise inexplicable punishment and examines the peine forte et dure not so much as an extreme legal sanction as a cultural practice that may shed light on how popular convictions about suffering, justice, and true manly courage intersected in early modern England. This was an age in which courage, resolution, and the appearance, at least, of a cheerful willingness to embrace suffering communicated not merely strength of character but righteousness. Thus, the peine forte et dure could become politically charged—opening up what scholars would refer to as a “contested space” where the words and behavior of the sufferer were invested with particular significance and weight.[15] For the “strong and stout hearted man” was not merely admirable in that he was willing to suffer dreadfully in order to save his estate for his heirs; rather, the courage that could endure such a stern test could itself be read as a species of social critique. Indeed, as I shall argue, those men (and at least one woman) who willingly subjected themselves to the press can be seen not only as rejecting the tribunal, but challenging its very legitimacy.
Origins and Evolution of the Peine Forte et Dure
Peine forte et dure had its origins in the replacement of trial by ordeal by trial by jury after 1215 and was a corruption of prison forte et dure, a term of “hard and severe imprisonment” imposed on those who refused to put themselves “on the country,” or the jury. Originally the sentence, as expressed in the First Statute of Westminster in 1275 (3 Edward I, cap. 12), specified only that “they which refuse to be tried by the Law of the Realm … shall be put in hard and strong prison (prison forte et dure).”[16] The late thirteenth-century legal treatises Fleta and Britton reinforced this impression of an interim “penance” imposed until the prisoner “has learned his lesson and asks leave to acquit himself of the charge according to the law,” rather than as a death sentence. Both works detail an elaborate regimen closely resembling that set out in the sentence pronounced at Cross and Spiggot’s 1721 arraignment (albeit one that bore little relationship to Spiggot’s actual experience): “[the prisoner] shall be clad in a single garment and be unshod and, laying upon the bare earth, he shall have for food but a quatern loaf of barley bread every second day, not so that he shall eat daily but only every other day, nor shall he drink daily, but on the day when he does not eat, he shall drink only water.”[17] The author of Britton adds that suspects “be put in irons”; this was however standard procedure for accused and convicted felons and was probably not so much an innovation as an attempt “to ensure that they did not, as other prisoners were liable to do, pay fees to their gaolers for the removal of their irons.”[18]
By the early fourteenth century, doubtless to expedite proceedings, irons were being deployed differently: still subject to the same cold floor and undershirt, the prisoner’s diet had deteriorated (“a little rotten bread” and “cloudy and stinking water” on alternate days); more importantly, however, the defendant was now “pressed with as great a weight of iron as his wretched body can bear.” The nature of this “pressing” is not clear and may have simply referred to the wearing of irons, although the additional remark that “only superhuman strength survives this punishment beyond the fifth or sixth day” suggests an unprecedented rigor.[19] However, the real watershed was probably 1406, when Lord Chief Justice Gascoigne sentenced two accused robbers found to be “mute of malice, to delay their death … to have put upon them as great a weight of iron as they can bear and more” (my emphasis) and, between infusions of the usual stagnant water and coarse bread, “so to lie until death.” This judgment was followed by others in 1464, 1474, and 1505 ordering that mute prisoners be consigned to the peine until they were dead.[20]
But although after the fifteenth century the peine forte et dure was thus technically a death sentence, it continued in practice to be deployed as a means of inducing recalcitrant defendants to plead. In theory, removing a prisoner from the press was represented as a favor granted at the judge’s discretion: when Edward Burnworth, after “having endur’d great Tortures in the Press, desir’d to be brought into Court,” he was obliged to make a “humble Application to the Judge that his Sentence of being press’d to Death might be remitted,” which, we are told, “the Court was pleas’d to order.”[21] Nonetheless, if the experience of seventeenth- and eighteenth-century prisoners is any guide, it would seem that a word from the sufferer could at any time call a stop to the peine and that the remission of the sentence was but a formality.[22] Indeed, so “tender was the law inflicting this dreadful punishment,” according to Blackstone, that the court first took pains to establish whether the prisoner was “obstinately” or naturally mute (i.e.,”by the visitation of God”).[23] If the latter, the trial proceeded as though a plea of not guilty had been entered. If however there was no physical impediment, the prisoner was given three warnings, “a respite of a few hours, and the sentence was distinctly read to him that he might know his danger.”[24] With a faith in the efficacy of extreme deterrents that was by the middle of the eighteenth century already wearing thin, Blackstone saw in the very severity of the sentence a benevolent design: it was “a judgement, which was purposely ordained to be exquisitely severe, that by that very means it might rarely put into execution.”[25] Babington, writing in the late seventeenth century, was less sanguine as to the infrequency of the practice but nonetheless characterized it as “a Sentence so severe” that “never English man as yet (though many have been Prest to death) had the heart to execute it according to the letter.”[26]
There were certainly wide variations over time in how this sentence was interpreted by judges and executed by the sheriffs who oversaw the punishment.[27] These changes resist any attempt to impose a simple linear interpretation, let alone one predicated on humanitarian concerns. One general trend seems evident, however: while the medieval peine forte et dure was a prolonged affair—survivals of days, weeks, and, until the fourteenth century, even months being reported (although in the latter case, doubtless testament more to the venality of jailers than to the leniency of the punishment)—by the late sixteenth century, pressing had become much more expeditious.[28] Holinshed reports that “Such fellons as stand mute and speake not at their arraignment are pressed to death by huge weights laid upon a board, that lieth over their brest, and a sharpe stone under their backs,” the latter presumably intended to hasten their death.[29] The Catholic martyr Margaret Clitherow, probably the only woman in the early modern period subjected to the peine forte et dure, was pressed to death in 1583 under “a quantity of seven or eight hundred-weight at the least,” dying in “one quarter of an hour”: a relatively swift execution (however unenviable) expedited by “a sharp stone, as much as a man’s fist.”[30] And although we are told that at his execution in 1658, George Strangwayes “was prohibited that usual Favour” of having “a sharp piece of Timber layed under his Back, to Accelerate its [the press’s] penetration,” the press itself—described here as having a “triangular form”—was “plac’d with the Acute Angle about the Region of the Heart” so that it “did soon [within eight minutes] deprive that Fountaine of Life of its necessary Motion.” Strangwayes had also benefited from the assistance of standers by who, when “the first-Weight” proved “too light for a suddain Execution … added their Burtherns to disburthern him of his Pain” (which, notwithstanding, proved both “a dreadfull sufferance” for Strangwayes and a “horrid Spectacle” for his helpers).[31] When at the Lewes assizes in 1735 John Weekes “continu’d obstinate,” weights were laid on him in hundred-pound increments; and after three hundred, in increments of fifty. At four hundred pounds, “he was just dead, having all the Agonies of Death upon him: Then the Executioner, who weighs about 16 or 17 Stone, lay down upon the Board which was over him, and, adding to the Weight, kill’d him in an Instant.”[32]
However, such expeditious peine forte et dure executions were not necessarily the rule in the seventeenth and eighteenth centuries, if we may credit the Swiss traveler Cesare de Saussure who, writing in 1726, claimed that “Cases have been known of criminals … [dying under the press] after two or three days of atrocious suffering.”[33] In 1672 the matricide Henry Jones was reported to have lain in the press “for almost two days and nights before he was dead,” although the author was unsure of “whether it was not made convenient for that purpose, or whether for the detestableness of his Crime, it was intended he should suffer the rigour of the Law.”[34] John Langbein has speculated that the court “could protract the defendant’s suffering in order to coerce a plea … if the crown had some interest in conducting a trial,” citing the 1615 trial of Richard Weston, thought to have poisoned Thomas Overbury on the orders of the Countess of Somerset.[35] Weston in the end opted to plead instead of subjecting himself to the press but was evidently given much time to reflect on his initial decision to stand mute in hopes that his testimony would implicate the Countess. While such evidence was not forthcoming, it is likely that Weston was indeed frightened by Sir Edward Coke’s warning that “oftentimes men [sentenced to be pressed] lived in that extremity eight or nine days.”[36] Whether an empty threat or not, the execution of the peine forte et dure, like virtually every other aspect of the early modern criminal law, was subject to the discretion of those who administered it.[37] And by the eighteenth century, in metropolitan London at least (if not in Sussex), the peine forte et dure seemed to be administered in such a way that the prisoner was, like Edward Burnworth, “not … able either to die or live, the torment being lingering.”[38] Burnworth “continued for the Space of one Hour and three Minutes, under the Weight of three Hundred, three Quarters, and two Pounds,” all the while “endeavour[ing] to beat out his Brains against the Floor; during which time, the High-Sheriff … frequently exhorted him to plead to the Indictment, which at last he consented to do.”[39] It is perhaps significant that eighteenth-century prisoners such as Burnworth did not, like George Strangeways, enjoy the assistance of sympathetic spectators. While the evidence for this is largely negative, by the eighteenth century, officials—at least those in the metropolis—appear to have been the sole witnesses of peine forte et dure.
However useful as a threat, there is no doubt that the courts were extremely reluctant to impose the sentence of the peine forte et dure. After the Restoration, whether as an attempt to circumvent the press entirely, or merely to expedite court business, it became the “constant practice” to send those prisoners who refused to take their trials at the Old Bailey back to Newgate with their “two Thumbs … tyed together with Whipcord, that the pain of that might compel [them] to plead.”[40] There was at the seventeenth- and eighteenth-century Old Bailey certainly no dearth of recalcitrant prisoners such as the pickpocket Mary Andrews, who, after refusing at her 1721 arraignment to plead “till the Money which was taken from her when she was apprehended, should be restored to her,” was “so obstinate,” despite all the “Admonitions of the Court,” “as to suffer three Whipcords to be broke in tying her Thumbs.”[41] Similarly, William White and Thomas Thurland, tried in 1716 for robbery and murder, remained “contumnacious” even after their thumbs “were tied together with Whipcord and drawn by the whole Force of two Men … above a Quarter of an Hour.”[42] Most defendants, including Andrews, White and Thurland, eventually backed down, perhaps cowed less by the whipcord than by the sight of “Death so near and terrible.”[43] But, as we shall see, there still remained a handful of men like the robber James Parker, who in 1676 “forced” the court “to commit him to the press” and was “very much bruised … before he would recant his obstinacy.”[44]
Motivations for Enduring the Peine Forte et Dure
Why did prisoners willingly subject themselves to the agony of the peine forte et dure? The desire to secure property for heirs, to escape “corruption of the blood,” and, to a lesser extent, to spare one’s family the “mark of infamy” associated with public execution, were often cited, both by contemporaries and by later writers; however, as I have suggested, the first two explanations are at best partial.[45] Although those who died under the press could transmit their estates to their beneficiaries, chattels were by all accounts forfeit.[46] Indeed, the sentence of pressing read out to Spiggot and Cross concluded with the sentence, “And he against whom this Judgment shall be given, forfeits to the King his Goods.”[47] The bulk of the condemned in any case had no estates or property worth confiscating. Moreover, by the late seventeenth century, “juries returned as a matter of course the report the convicted men had ‘no goods'”; even in the case of more wealthy convicts, according to Saussure, it was “very rarely that the King makes use of this privilege [confiscation], and almost always gives up these possessions in favour of the families of the criminals.”[48] In 1740, even after the high sheriff of Suffolk had already seized the estate of the parricide Charles Drew, valued at £660 per annum, the King was “graciously pleas’d to send down a Remittance of the Estate in behalf of the Family.”[49] So, while concern for securing titles and estates for one’s heirs may have been uppermost during the late medieval period, by the late seventeenth century the most likely motivations for undergoing the press seem to have been the desire to preserve one’s reputation or to express one’s rejection of the tribunal, points to which I will shortly return.[50]
Some prisoners who refused to enter a plea were simply obstructionist, like John Durant, who at his 1734 arraignment claimed to be deaf (and unable to read), although several court officers claimed that he could hear “when they baul’d to him in Newgate.” (After a long delay, some thumb-tying, and threats of pressing, Durant’s hearing improved enough for him to plead not guilty.)[51] Others were animated by spite: in 1727 Thomas Johnson, alias “Handy,” refused to plead to his indictment for theft “saying, the Prosecutors thought to hang him for the sake of the 40 Pounds allowed by the Government [as a reward], but he would baulk their Expectations, for he would be hanged for returning from Transportation according to Law.” “Handy” (so called because he had the use of only one hand, the other having atrophied after a childhood accident) had been transported for theft but returned before serving out his term: “as he alleg’d, he was forc’d to come Home” because “No Body would buy him, because he wanted a Hand.” Johnson finally consented to take his trial, and the jury found him guilty of a single—i.e., non-capital—felony. But, “upon his [own] Confession,” the luckless Handy was indicted for returning from transportation, a capital offense. He was hanged a little over two weeks later.[52]
Most prisoners who initially “stood mute” were attempting (however unsuccessfully) to strike some sort of bargain with the court. At the Old Bailey in 1673, David Pearce and William Stoaks refused to hold up their hands, “for as they were accused for Robberies in Rutlandshire” they claimed “they ought not to be tried there [at the Old Bailey].” When their hands were forcibly raised “they replied, although their hands were forced up, their tongues should not be forc’d to speak.” (Holding up one’s hand at the bar both identified the defendant and indicated that he or she was willing to put him or herself on “the country,” or jury; refusal to do so was a form of “standing mute.”)[53] They were given an extra day to decide whether they would take their trial or be “prest,” eventually opting for the former.[54] Similarly, in 1728 the highwayman James How alias Harris refused to plead on the grounds that he had cooperated with authorities and should be admitted as an evidence (i.e., be granted immunity from prosecution). He, too, after being threatened with the press and given a day to reconsider, thought better of it, although not before a show of bravado in which he claimed “he could but die, and the Manner in which he died was indifferent to him.”[55] In 1770 George Allen alias Powditch, indicted for breaking out of prison while he was under sentence of transportation for stealing a sack of peas, “refused to plead, unless the Judge would promise, that in case he should be convicted, his sentence should not be transportation again.” The judge “remonstrated” with him, but this proving fruitless, he then proceeded to read out the sentence of the peine forte et dure; he concluded by informing Powditch “that he remembered two instances of men submitting for a little time to that punishment, but that neither persevered in their resolution.” Powditch eventually backed down, but not before cursing the judge (“You may die and be d——d yourself”); on his way out of the court, he knocked down the hangman for good measure.[56]
Others, like William Spiggot, Thomas Cross, and Mary Andrews, demanded the return of money, clothes, and other items taken from them upon arrest. According to a 1692 “Act for encouraging the apprehending of Highwaymen,” the “Horse, Furniture, and Arms, Money or other Goods” of suspected robbers could be divided among those who had brought them to justice.[57] Such property was only to be returned after acquittal, a fact that many prisoners clearly resented, not least because seventeenth- and eighteenth-century prisons were as expensive as they were insalubrious.[58] Nonetheless most who, like the highwayman John Stevens alias Henry Cooke, refused to plead until their goods or money was returned to them, thought better of their “resolution” after it became clear that the court was serious in its threats of subjecting them to the press.[59] Upon their 1726 arraignment for the murder of a thief-taker, the street robbers William Blewet and Emanuel Dickenson “refused to plead till their Irons were taken off”; they were accordingly “freed of their Hand-Cuffs” and then “said they would be content to stand in their Fetters, and give the Court no farther Trouble.” The leader of their gang, Edward Burnworth, was not so accommodating, however, “absolutely refusing to plead, till his Hat and Perriwig, and a Gold Watch, that the Constables and others took away … were return’d again.” “Continuing contumnacious” even after having “his Thumbs strained with the Whip Cord till the Blood came,” Burnworth was at last subjected to the press, where, as I have described above, he endured a weight of over three hundred pounds for about an hour before finally consenting to plead.[60] Less than a year after the trial of Spiggot and Cross, yet another young robber (“not 20 Years old”), Nathaniel Hawes,”affecting to appear unconcerned about [being pressed],” refused to plead until a “handsome Suit of Cloaths” was returned to him. After several “Cords” were broken on his thumbs to no avail, Hawes was put under the press, where he lay for “about seven Minutes … under a Weight of 250 lb.” until “he desired to be carried back.” At his trial, he “said nothing in his Defence, and only insisted on having his Cloaths returned.”[61]
According to Henry Summerson, an expert on medieval peine forte et dure, “some prisoners may have kept silent out of bravado, or because they were afraid of malice among jurors, or because they hoped to protect friends or accomplices.” The desire to protect accomplices—if not necessarily bravado, as we shall see—may seem insufficient to explain why a prisoner would undergo the full rigor of the early modern press. But Summerson’s claim that “those who stood mute were frequently people arrested in circumstances in which standing trial would have meant certain conviction” certainly applies to the seventeenth and eighteenth centuries.[62] During the Salem witch prosecutions in 1692, Giles Corey “pleaded not Guilty to his Indictment, but would not put himself upon Tryal by the Jury (they having cleared none upon Tryal) and knowing there would be the same Witnesses against him, rather chose to undergo what Death they would put him to.”[63] Certainly, John Weekes (“commonly called the Dumb Man”), the accused robber and murderer pressed to death at the Lewes assizes in 1735 was caught red-handed—literally—”several spots of Blood, and Part of the Goods being found upon him.” In light of this evidence, as well as the testimony of his alleged accomplice, it is not surprising that the man “pretended to be dumb and lame” (a defense rendered ineffectual, however, by the testimony of “Four or five Persons in the Court [who] swore they had heard him speak”).[64]
Another motive commonly attributed to those prisoners who stood mute was the desire to spare themselves and their families the ignominy of public execution. Again, this may have been a more compelling consideration in the middle ages, before the horror of the peine had achieved its full dissuasive perfection; nonetheless, seventeenth- and eighteenth-century judges and divines alike continued to represent subjecting oneself to the press as an attempt to cheat the gallows by recourse to “an obstinate kind of Self-Murder.”[65] In his attempts to persuade Weston to plead, Coke exhorted him not to “make himself the author of his own death, even as if he should with a knife or dagger kill or stab himself.”[66] In a particularly pointed sermon delivered to William Spiggot and his fellow prisoners, the Ordinary of Newgate descried against the “False Courage” that induced condemned “Malefactors … to lay violent Hands upon Themselves, to prevent the effects of the Law.” Suicide may have been “an Action fit for Socrates and Cato, and the greatest Heathens” but “it was yet too mean and indecent for the lowest Christian; as there is something Cowardly and Base, in cutting off our Lives, for fear of Pain and Shame.” The Ordinary was quick to ascribe suicidal tendencies to the same source as the obstinate refusal on the part of many criminals to confess to their crimes: pride.
I fear’d we had Instances of Men, of uncommon Impiety, who so much more valu’d the good Opinion of Men, than the Praise of God and Angels, that they … endeavour’d to preserve the Honour of their Families, even at the expence of throwing Themselves into Hell: Whereas, 500 years hence, both the Sinner, and his Family, and its Honour, will be as if they had never been, as to this World; but as to the next Life, such a dying Lyer will find himself chain’d and pinn’d down to eternal Unhappiness; and will find that any Honour of his Family, will little avail, toward abating the wretchedness of his Soul.[67]
Even more so than those of the condemned who refused to acknowledge their guilt, prisoners who refused to plead posed an implicit challenge to the legitimacy of the court. Indeed, at least one contemporary acknowledged that the press was applied to those prisoners who “refused to plead or contest the authority of the tribunal over [them], (my italics).[68] As the late eighteenth-century jurist Daines Barrington noted, “the common reason given [for the necessity of pressing mute prisoners, is] that the prisoner must acknowledge the jurisdiction of the court.”[69] After reading out the sentence of peine forte et dure to Nathaniel Hawes, the judge went on to lecture him on the “equity of the law of England,” its “[tenderness] of the Lives of its Subjects,” and the “Humanity of our Constitution” in framing “so fair, so equal a Trial” presided over by a court which acted as “Council” to the accused, and “twelve honest Men ready to enquire impartially into the Evidence that shall be given against You.”[70] The effort by early modern courts to grant even avowedly guilty defendants a trial was often invoked as evidence of the particular mercy of the English criminal law. Prisoners were strenuously and explicitly urged to enter pleas of not guilty even if the evidence against them was overwhelming—or indeed, if they had already confessed—on the principle that a trial would allow for the introduction of mitigating circumstances (poverty, for instance) or information about the offender’s character that would be critical in determining whether he or she would be pardoned, reprieved, or convicted of a lesser (i.e., non-capital) offense. In the absence of plea bargaining or defense counsel, early modern criminal trials were less about determining the defendant’s guilt or innocence of a specific charge than they were a kind of “sentencing hearing” aimed at weighing the character of the prisoner, and his or her likelihood of offending again. Indeed, in many eighteenth-century trials (certainly as far as property offenses were concerned) more time was spent on calling character witnesses than on examining evidence relating to the crime.[71]
This emphasis on character and the testimony of neighbors, employers, and social superiors may account for much of the resistance to jury trial on the part of men like William Spiggot, Edward Burnworth, and Nathaniel Hawes. Such resistance had, moreover, a long pedigree: the author of the late thirteenth-century legal treatise, The Mirror of Justices, castigated as an “abuse” the fact that “justices drive a lawful man to put himself upon his country when he offers to defend himself against an approver by his body.”[72] Jury trial certainly undermined the degree of autonomy accorded to the defendant in either trial by ordeal or by compurgation—the latter a process by which the accused proved his or her innocence by taking an oath and summoning witnesses (compurgators) who would testify on his or her behalf. According to one early twentieth-century legal historian, the medieval jury was widely perceived as “an impertinence, an intrusion into private rights, popular privilege, and individual honour”; the jury trial itself, “a method of heaping up against [defendants] the slanders, the malicious gossip, the misconceptions and the ill-will of the envious, and the condemnation of self-righteous neighbors.”[73] Medieval jurors were also “self-informing”; that is, local men who, familiar with the defendant and sometimes even actively involved in the prosecution, acted “as witnesses rather than triers of fact.”[74]
While early modern jurors were not so partisan, it was likely that, like the judges themselves, these men would have recognized repeat, or “old offenders” like Spiggot, Burnworth, and Hawes. Although historians debate the degree to which jurors were independent or deferential to the bench, there is general agreement that even petty juries were composed of men of much higher social standing than the vast majority of the accused. The defining characteristics of seventeenth- and eighteenth-century English juries in general, and London juries in particular, were, according to John Beattie, “their respectability, experience, and engagement in local affairs.” The same men who served on seventeenth- and eighteenth-century London juries (many of them, repeatedly) may well have also had first- or second-hand knowledge of the accused in their capacity as masters, employers, constables, poor law officials or other parish officers.[75] Thus, refusal to plead may well have reflected a more generalized resistance to a form of trial that tended to deny the accused an active voice, placing more emphasis on the discretion of prosecutors, judges, juries, and character witnesses than the testimony of the defendant.[76]
Peine Forte et Dure as Pre-trial “Counter-theatre?”
According to the thesis expressed in Douglas Hay’s landmark article, “Property, Authority and the Criminal Law,” the paradox of an eighteenth-century criminal law that prescribed death for two hundred offenses (many of them venial even in the eyes of contemporaries), but that in fact hanged only a small proportion of those charged with capital crimes, is best explained if the law is viewed as an “ideological system” legitimated by the exercise of “majesty, justice and mercy.” Thus, the discretion so central to the administration of eighteenth-century criminal law was less about ameliorating the excesses of the capital code than it was about “maintaining bonds of obedience and deference” between propertied and propertyless.[77] As Hay and others have noted, many of the rituals and ceremonies associated with criminal trial—the assize sermons, the judge donning a black cap before pronouncing the sentence of death (in a “maiden” sessions, where no one was condemned, the judge was presented with a white cap and gloves)—were clearly intended as moral theater. Recently, however, scholars have questioned the degree to which “the images, rituals, discretionary opportunities, and legitimating functions of the law” were in fact successful in “reinforcing the cultural hegemony of the elite”—increasingly viewing the gallows in particular as a potentially “unstable” site, not only resistant to stage-management but liable to degenerate into “counter-theatre.”[78] But although we may qualify the extent to which authorities were able to deploy the death penalty to legitimate and maintain social discipline, there is no doubt that those who administered the seventeenth- and eighteenth-century criminal law were, in the words of Peter King, in a position to exercise “naked power,” and perhaps nowhere more so than in the courtroom, where impressions were all important, and gestures of penitence and deference could make the difference between life and death.[79]
Men like William Spiggot, Nathaniel Hawes, and Edward Burnworth, repeat offenders whose robberies were compounded by violence, had scant hopes of acquittal or pardon to begin with. Nonetheless, those of the accused who “insulted the Court,” like William Spiggot or George Powditch—or even those who, like Thomas Johnson alias “Handy,” displayed an unbecoming disregard for the seriousness of their predicament—in effect signed their own death warrants. When in 1728 the highwayman James Harris attempted to withhold his plea as a bargaining tactic, “the Court informed him, that they would enter into no Altercutions [sic] with a Prisoner at the Bar”; when Harris “persisted obstinately” in his refusal to plead, “he was told from the Bench, that such a Behaviour was not a Method proper to excite the Mercy of the Court. … “[80] Men and women who refused to plead or attempted to impose conditions on the court violated a culture of deference that nominally, at least, made mercy conditional upon the observance of certain forms. Not least of these was the ritual by which those whose sentences of death were commuted or who received full pardons were obliged to beg such pardon on their knees; even those who were acquitted were also made to bless both the King “and all the honourable Court,” while kneeling.[81] We can only imagine how much it would have rankled Edward Burnworth’s pride to be forced to make, on his knees, a “Humble Application to the Judge that his Sentence of being press’d to Death might be remitted.”[82]
Moreover, violations of this culture of deference could, briefly at least, tear the veil from what one scholar has termed the “public transcript”—the normative, but inherently unstable discourse purporting to legitimate and to normalize power differentials between dominant and subordinate groups.[83] In May 1679, during the height of public belief in the Popish Plot, one John Morgan was tried and condemned as a Catholic priest, an offense made capital under a 1581 Act, but after the Restoration rarely enforced to its fullest rigor. Morgan was duly offered a pardon but created a stir when he “could very hardly be brought to accept of this Pardon, or to Kneel whilst it was read, alledging that he had committed no Crime, needed no Pardon, had not sued for this, &c.;” Court officers were left with several undesirable alternatives, both of which would provide Morgan with a platform upon which he could testify to the righteousness of his cause: they could force him to his knees or let him hang. Luckily, a third alternative presented itself: citing the currently credible “Testimony of Doctor Oates and others that he was sometimes maddish,” the court “excused his extravagancy” and thus “got him into the Pardon” despite his refusal to beg for it.[84] Thus Morgan’s challenge to the justice and mercy of the court was dismissed as a species of irrationality, even of madness. Interestingly, as we shall see, similar arguments would be deployed against those early eighteenth-century “game” highwaymen and robbers who refused to submit to jury trial.
The words and actions of men who, like Spiggot, Burnworth, and Hawes, actually subjected themselves to the press, as well as those who (however disingenuous their claims might prove) boasted, like James Harris, that “he could but die, and the Manner in which he died was indifferent to him,” not only implicitly challenged the tribunal but invoked a discourse of manly courage and resolution that could easily lend itself to a more generalized critique of criminal justice. In the context of a culture that subscribed to a belief in universal human depravity and viewed death as the debt owed by all men and women as a result of original sin, contemporaries placed a high value on an apparently cheerful willingness to settle one’s accounts. One of the central messages of early modern picaresque literature and Augustan social satire alike was that while all men (and women) were sinners and rogues, criminals were “honester” than their betters not only in that they were neither so hypocritical nor so “overwise” as to be able to translate their petty rogueries into respectability and wealth, but also because they, at least, paid for their transgressions with their lives. It was a truism of such literature that the law was a like a cobweb that trapped little flies but allowed larger offenders to break through unscathed.[85] Samuel Garth’s description of the Old Bailey as “that most celebrated Place,/ Where angry Justice shews her awful Face;/ Where little Villains must submit to Fate, /that Great Ones may enjoy the World in State,” was adopted as the epigram on the title pages of both Captain Charles Johnson’s 1734 Lives of the Highwaymen and Captain Alexander Smith’s 1726 collection of the lives of Jonathan Wild and other “Modern Rogues” (including both Strangwayes and Burnworth) and endlessly paraphrased in John Gay’s The Beggar’s Opera and similar eighteenth-century works.[86]
Such indictments of the hypocrisy of the law still have resonance today. But in our secular age it is difficult to appreciate the early modern valorization of courage as a kind of sacramental article, and the degree to which even an assumed willingness to embrace suffering and death lent force and legitimacy to the implicit challenge to the court that standing mute represented. And indeed, it may not be too farfetched to see in such resistance to jury trial evidence for the persistence of older popular beliefs relating to alternate notions of proof—for instance, the belief that courage or composure under duress or the ability to endure suffering had metaphysical connotations. As John Langbein has pointed out, long after trial by jury had become “the regular mode of proof in cases of serious crime,” it still “retained,” at least in popular memory, “its consensual element.”[87] According to Daines Barrington, “the common question asked the criminal, viz. Culprit, how wilt thou be tried? is improperly answered, By God and my country. It originally must have been, By God or my country, i.e. either by ordeal or by jury; for the question asked, supposes an option….”[88] And there were some prisoners who refused to plead under the pretext at least that they chose to be tried “by God” rather than the jury. At his 1615 arraignment, Weston being “demanded how he would be tried, he answered, he referred himself to God, and would be tried by God; refusing to put himself and his cause upon the jury or country.” After persisting in this refusal for several days, Weston did in the end take his trial, pleading not guilty. He was convicted and hanged; however, it later emerged that although Weston had laced Overbury’s meals with poison, the latter had in fact died after being “smothered to death” by another accomplice. Thus Weston may well have considered himself technically innocent of the charge against him.[89]
Certainly, some late medieval examples of peine forte et dure suggest that the punishment was originally viewed as an ordeal that could be “passed.” In 1384 one John atte Puttes “was pardoned after enduring peine forte et dure for so long it seemed a miracle he remained alive”; in 1359, Cecilia Rygeway, accused of murdering her husband, received a full pardon after she “sustained life without food or drink, in close prison, during forty days, after the manner of a miracle, and contrary to human nature.”[90] Moreover, cultural memories of the press as a trial “by God,” rather than a jury of one’s peers, seem to have persisted. In 1586 the Catholic martyr Margaret Clitherow died under the press after refusing to plead to charges of harboring Jesuits and priests. Despite assurances from the bench that she was unlikely to be convicted “upon such slender evidence,” and that even if she were “we may yet show mercy afterward,” Clitherow was adamant, claiming that if “I must be tried, I will be tried by none but by God and your own consciences.” Clitherow denied that she “sought her own death”; rather, she refused to take her trial out of “a marvellous charity” both to her neighbors and family, so that they would not be called to testify against her, and to her prosecutors, so that they would not be made “accessory to [her] death.” She endured all the indignities and privations of her imprisonment with a “joyful countenance” detractors attributed to a “merry devil,” and supporters to her having “received comfort from the Holy Ghost”—for, charity and cheerfulness under duress, no less than courage and resolution, were widely taken as evidence of the divine support, or “supernatural assistance,” that God granted to those who suffered in a just cause.[91] Despite being denied visits from her husband, and being continually hounded by questions, her interrogators “could never move her to impatience, change of talk or countenance.” On the morning of her execution, she distributed alms with a “joyful countenance” before going “cheerfully to her marriage, as she called it.”[92]
This description of Clitherow’s “invincible courage” clearly attests to the way in which “the fortitude of one woman” exposed “the injustice of … your [Protestant] tyranny and impious law.”[93] While Protestant accounts would have been unlikely to concede the point, it is significant that when, several years later, Jane Wiseman refused to plead to the charge of harboring Catholic priests and was sentenced to be pressed to death, the “Queen’s councillors [had] second thoughts” and in the end suspended the sentence. Perhaps it was simply that “they did not want to shock London by the barbarity,” but it also seems likely that the government was reluctant to create a second peine forte et dure martyr.[94] Nor was the significance, or what Lake and Questier have termed the “rhetoric of suffering,” confined to those who died martyrs.[95] Late seventeenth- and early eighteenth-century men and women did not necessarily share our post-Enlightenment view of physical pain as an evil in itself; rather, according to a recent work on torture in early modern France, suffering could perform important cultural functions: it could be redemptive, “a positive technique for the destruction of selfishness, of ego, so as to make room in the heart for God”; and diagnostic, in that it “tapped the spontaneous truth of the body” that, unlike the mind, “could not dissimulate.”[96] Moreover, suffering performed a diagnostic function also in that it was popularly believed to shed light on more metaphysical truths: as I have suggested, courage, composure, cheerfulness, and charity in the face of physical or psychological affliction were widely taken as evidence of divine support or encouragement—hence, by extension, the righteousness of the sufferer. Finally, the notion that suffering was purgative, allowing even the most sinful of sufferers to expiate his or her sins and to achieve salvation, appears to have been deeply imbedded in early modern popular culture.[97]
In 1672, Henry Jones, who admitted to having murdered his own mother, refused to take his trial, apparently believing that, since his crimes were “so odious both in the sight of God and man,” being pressed to death was a fitter punishment than hanging. Despite the warnings of his minister to “take heed of thinking that if your life pay for your Mothers, you do thereby make satisfaction to God,” Jones expressed his “firm belief” that Christ would “preserve him” alike “from sinking under … the burthen of his sins” and “the weight that was to press his body to death.”[98] We are told that Jones suffered under the press for almost two days before expiring, “yet endured it with that courage and patience, as become one that was sensible that his sins were washed away in the blood of Iesus,” and thus “could not only go through, but welcom [sic] the greatest pains that in this World could be inflicted.”[99]
Most accounts of individuals undergoing the peine forte et dure, however, emphasized not so much a desire to purge sins as to demonstrate a manly courage that was its own proof, if not of innocence, than of a kind of moral righteousness. It is important to point out here that Margaret Clitherow constitutes a special exception: as a martyr, she was invested with a courage that would have been classified as masculine. In the context of early modern English religious culture, as Jeremy Gregory has observed, “women who were held up as models did so by transcending their femininity, providing examples of ungendered behaviour.”[100] One of the major themes of martyrologists such as Foxe was that God was no more a respecter of gender than of person in terms of conferring divine courage on the righteous; indeed, His potency was only amplified by being manifested in a weak vessel. Foxe’s female martyrs are consistently described in terms of their “christian constancy,” “manful” suffering, and “manly stomach.”[101]
This equation of an appropriate manly courage—”a stout, but Christian-like manner of dying”—with relative (if not strictly legal) innocence is illustrated by the case of George Strangwayes, pressed to death in 1658, and described glowingly as “a Person that had a brave, and generous Soul … of Stature Tall, and fram’d to the most masculine Proportion of Man.”[102] Strangeways, a former royalist officer, had been charged with the murder of his brother-in-law, an attorney named John Fussel with whom Strangeways frequently quarreled, convinced that he had married his sister for her money. While Strangeways initially denied his guilt, he eventually confessed to having hired an accomplice (whom he refused to name) to shoot at Fussel—not to kill him, but only to frighten him from “practising litigious Sutes.”[103]Strangeways, whose life had been hitherto characterized “by a constant course of worthy and manly actions,” had previously challenged Fussel to “single Combat,” even granting the latter “advantage in length of weapons,” but the lawyer, preferring more “subtile” and “sure”—i.e., litigious—means of settling disputes, declined.[104] Strangwayes, displaying what was evidently considered a proper mix of “courage and contrition,” denied having intended or committed murder but freely admitted deserving death for his sins. “In a word,” Strangwayes wrote to a surviving brother-in-law, “each man oweth a death, I two by this untimely fact: The one to my maker, the other to the Law, [and I] pay the one the more willingly, being confident that the other is cancelled by the All-seeing eye of divine Mercy and justice.”[105]
Strangwayes’s expressed motives for enduring the press are at face value very conventional: first, he attempted to bargain with the court, offering to take his trial “if it might … be admitted to him to die by that Manner of Death, by which his Brother fell”—in other words, by firing squad. If he were not granted that favor, he would “by refusing to plead, both preserve an Estate, to bestow on [his] Friends … and withal, free himself from the ignominious Death of a publick Gibbet.”[106] But the description of Strangwayes’s behavior suggests that he was adhering to a script best calculated to assert his manly virtue and hence his innocence of any dishonorable action. Implicit also in the account is Strangwayes’s rejection of the legitimacy of the tribunal. Strangwayes was supposed to have challenged Fussel to a duel on the grounds that “it argues not Discretion in us, of either Side, we being both Cavaliers, to submit our Causes to this present Course of Law, where the Most of our Judges are such as were formerly our Enemies; Calice [Calais]-Sands were a fitter Place for our Dispute, than Westminster Hall.” (Fussel “not only refus’d … but also Indicts his Brother Strangwayes, as a Challenger.”)[107] Last but not least, Strangwayes’s “Christian confidence” and “Passive Valour (high as ever was his Active)” in subjecting himself to the press left no doubt as to his ability to successfully discharge all metaphysical debts.[108] Strangwayes wore all white to his execution, advertising the fact that his “soul,” too, was “dresse[d] … in those robes of Repentance wherewith she was suddenly to meet her Celestial Bridegroom.”[109] As his arms and legs were extended he “crie[d] out, Thus were the sacred Limbs of my ever blessed Saviour, stretch[ed] forth on the Cross, when suffering to free the Sin poluted World from an eternal Curse.” “With a clear and sprightful Voyce,” Strangwayes prayed for God’s help in “this last, and dreadful Tryal,” calling out for Christ to receive his soul.[110]
Dying “Like a Man”: Peine Forte et Dure and Eighteenth-Century Plebeian Masculinity
Like the account of Margaret Clitherow, these seventeenth-century examples were clearly “glossed” insofar as they conform to a distinctly martyrological script (if undoubtedly one with which the condemned actively collaborated); nonetheless, similar themes persisted in eighteenth-century accounts corroborated by pamphlets, newspaper accounts, and semi-official sources, and exposed to the full glare of Augustan London’s very “public sphere.” Although commentators were quick to dismiss the posturing of “game” criminals as mere bravado, the equation of true manly courage with moral—if not strictly legal—righteousness continued to resonate in popular culture. In 1721, the nineteen-year-old robber Nathaniel Hawes “refus’d to plead, saying, that as he had liv’d like a Man, he was resolv’d to die so, and not be hang’d in such a shabby coat as he then appear’d in.” Hawes “with a great deal of warmth” denied that “he chose pressing because the Court would not let him a good suit of Cloaths to be hanged in”; rather, “as he had lived with the Character of the boldest Fellow of his profession he was resolved to die with it.”[111] Not that the connection between dying “like a Man” and dressing like a gentleman should be underrated: one of the hallmarks of the “game” criminal was, of course, his dandyism. In part, dressing like a bridegroom simply reflected the criminal’s determination to cut a stylish figure at Tyburn; however, as Peter Linebaugh has argued, “flash clothes” could symbolize, above and beyond the popular association between weddings and hangings, both “a flaunting, ostentatious display of opposition to the severities of the law” and the “anticipation of divine union or a proclamation of innocence before God and the Sheriffs.”[112]
Metropolitan London was in the 1720s teeming with “bold fellows” like Nathaniel Hawes—at least if we are to credit alarmist contemporary reports. “Although the Insolency of those Street-Robbers … be at present too recent a Fact to be questioned,” wrote one author in reference to the “crime wave” of the 1720s, “yet possibly in future Times ’twill be thought an Exaggeration of Truth to say that Even at Noon-day, and at the most open Places in London, Persons were stopped and robbed, the Offenders for many Months escaping with immunity.”[113] In the early evening of 24 January 1726, Edward Burnworth and seven other members of his gang, all armed with pistols, paid a fateful visit to Thomas Ball, a thief-taker who had recently apprehended one of their comrades, at his home in St. George’s Fields. Burnworth shot Ball to death and, while “Ball’s wife and others” were “shrieking,” his accomplice William Blewitt “fired a Pistol” to “disperse” the gathering crowd.[114] For several weeks after this bold murder, Burnworth’s gang “continued to carry out their rapacious Plunderings, in almost all Parts of town,” often in broad daylight. And even after most of his confederates were in custody as a result of a royal proclamation offering a reward for the apprehension of the gang, and a pardon to any member (excepting Burnworth) who would testify against the others, Burnworth “went on at his old Rate, even by himself” for several days, even going to an alehouse in Holbourn “where he was known, and laying a Pistol down on the Table,” called for and drank a pint of beer, “defying any Body to touch him.”[115] In the end Burnworth was apprehended with the collaboration of the woman with whom he was hiding—the wife of Christopher Leonard, the very man whose arrest had incited Burnworth to shoot Ball.
And if the authors of sensationalist and semi-picaresque highwayman “lives” delighted in describing Burnworth and his confederate Christopher Leonard as “two as brave, noble nimble, and stout Fellows, as has been executed for this many Years, never fearing any Thing that they went about,” so too did such men apparently revel in their own notoriety.[116] Thomas Cross, Spiggot’s accomplice and co-defendant, “seem’d to glory in the Robberies he committed,” and boasted to the Ordinary of Newgate that he and Spiggot had once robbed “one Hundred Passengers” in one night. Spiggot himself was supposed to have told the Ordinary “that it was vain to mention his numerous Robberies on the High-Way, being perhaps a Hundred.”[117] Such men seemed to deal in large metric units: Henry Cooke, another highwayman threatened with the press after standing mute, confessed (or boasted) to having “committed an innumerable Sight of Robberies, more than an hundred.”[118] When Burnworth, Blewett, and the rest were imprisoned in Newgate, the prison “daily throng’d with People of Distinction to visit these extraordinary Persons.” Burnworth, who as “a Painter’s Son … had some little Notion of Designing … diverted himself with drawing Pictures relating to his Adventures,” including a picture of himself “as he lay under the Press,” later the frontispiece “of a six Penny Book which was published of his Life.”[119] At their execution in Kingston, “they all acknowledged that to have given a particular detail of their several Robberies, (a Work mightily sought for by some poor Printers that hung about them) would be an endless Task; Burnworth saying, that for his part alone, an hundred Sheets of Paper wrote as close as could be, could not contain them.”[120] Contemporaries were of course quick to dismiss such behavior as mere vainglory. Nathaniel Hawes is reported to have “declar’d, he would Merit a greater Reputation by the boldness of his Behaviour [i.e., refusing to plead], than any Highwayman that had died these seven Years,” the author adding sententiously that “the great Affectation of Intrepidity and Resolution, which he always put on, would have moved any Body, had it not been for his melancholy Condition, to have smil’d at the Vanity of the Man.”[121] Pride and concern for reputation indeed figured largely in the “Reasons” William Spiggot gave—probably in ascending order—for “enduring the Press”; i.e., “that he might preserve his Effects for the Use of his Family, that it might not be urged to his Children that their Father was hang’d, and that Lindsey the Evidence should not tryumph over him by saying he had sent him to Tyburn.” (Spiggot was especially bitter on the last count, as he had once “rescued [Lindsey] when he was nigh being taken, and in the defending him was wounded and in Danger of his Life.”)[122] Doubtless he would have been pleased that, as the “Spiggot that bore 350 lb. wt. on his Breast,” he would earn a berth among the most “eminent Convicts” cited in advertisements for an edition of the Select Trials published twenty years after his death.[123]
But this emphasis on masculine resolution, boldness, and honor (or vanity) is itself important as it was clearly central to the way in which such men chose to represent themselves. However mediated the sources for the lives of such criminals may have been, their reported threats and boasts, at least, have the ring of verisimilitude, if only because the authors of these works took such pains to condemn and to refute them. One of the men that apprehended Spiggot testified at the latter’s trial that he (Spiggot) “swore he would kill a Thousand before he would be taken.”[124] This equation of robbery with masculine courage was made explicit by one of Burnworth’s henchmen. When introduced to his future “Chief,” he claimed that Burnworth, “liking his Person and Mien, asked him if he had a mind to bear Arms, and live like a Man.”[125] And while this criminal subculture was doubtless much less organized and coherent than sensationalist reportage would suggest, nonetheless such bold and resolute (or “game”) criminals as Spiggot, Hawes, and Burnworth were clearly eager to advertize both their resolution and their rejection of the deferential, passive role thrust upon them by the courts. If their refusal to stand trial was one example of this, so too was their much-vaunted fearlessness.
On 14 March 1726 Burnworth and five prisoners ordered for execution the following morning attempted to break out of Newgate (Burnworth, not surprisingly, was named as the “principal Promoter of this Disorder”) but succeeded only in barricading themselves in the condemned hold “so that no Body could get at them.” They announced through the door that “they would not surrender, till they either kill’d or were killed.” One of the sheriffs and several officers stationed themselves in a room above the condemned hold and began discharging their guns at the prisoners through a hole in the floor. The latter, although at first, “answering every Discharge with a loud Huzza,” at last consented to treat with the sheriff, if he could prove his identity (he obliged by dangling down his gold chain). When the sheriff promised that the prisoners would be able to attend service in the chapel and that their demand that their execution be respited for two days would be “taken into Consideration” (in the end the condemned received a respite of hours, not days), the inmates surrendered.[126] When the jailers entered the hold, however, one of the condemned “snapp’d a Steel Tobacco-Box in the Face of one of ’em, which made a little noise like the snapping of a Pocket-Pistol,” saying, as the jailer recoiled, “D—m ye, you was afraid.”[127] It was a small but symbolic victory.
Contemporary commentators were somewhat more subtle in undermining the professed courage of criminals such as Burnworth, Spiggot, and Hawes, attributing it not merely to bravado and vainglory but to a shocking and even atheistic disregard for the eternal consequences of their actions. According to one author, “whilst [Burnworth and his companions] were under Conviction, the Terrors of Death did not make any Impression upon them”; instead “they diverted themselves with repeating Jests and stories of … the Manner of their Escapes before out of the Hands of Justice, and the Robberies and Offences they had committed.”[128] Burnworth “continu’d Deaf to all the Exhortations of the several Clergymen that attended him,” supposedly claiming “that the Apprehension of Death were no ways terrible to him, and that he could comprehend nothing of a future State, having, as was his constant Phrase, no Notion of it; but said, he look’d upon Death to a Thief to be no more than Bankruptcy to a Shopkeeper; if he thriv’d, it was well; it not, it was but shutting up, and there was an end to the matter.”[129] Like Shakespeare’s Barnardine, Burnworth was clearly unfit to die: “a man that apprehends death no more dreadfully but as a drunken sleep; careless, reckless, and fearless of what’s past, present, or to come.”[130] Moreover the courage of Burnworth and other such “obstinate” and impenitent criminals—based as it was on brutish insensibility—rested on foundations as demonstrably precarious as their hopes of immortality.
However, such criminals were not necessarily as impious as these accounts would suggest. William Spiggot, while under the press continually importuned by the Ordinary of Newgate not to be “the Author and Occasion of his own Death” and thus cut short the time remaining to him to “repent … for his vicious Course of Life,” was firm but respectful: “if I came to take care of his Soul, he would regard Me, but if I came about his Body, he desired to be excused, he could not hear one Word.” As his agonies increased, and the Ordinary’s remonstrations continued unabated, Spiggot would say only, “Pray for Me; Pray for Me!” After being pressed, Spiggot “constantly attended the Prayers in the Chappel, twice a-day,” and although not as sorrowful as the Ordinary would have liked, maintained that he was “truly penitent, and as sincerely so, as he who show’d his Sorrow by his Tears.”[131] Nathaniel Hawes, too, became “more Grave and Serious in his Deportment” before execution, receiving the sacrament “with all the outward marks of Devotion” and going “to his Death very Composedly.”[132] Those of the condemned who with Burnworth attempted to break out of Newgate claimed that they had done so at least in part “because so little time was allowed ’em to repent.” However this last may strain credulity, these prisoners’ expressions of their “great desire to receive the Sacrament” and to hear prayers in chapel before being rushed off to execution cannot be dismissed solely as a stalling tactic.[133]
Clearly, the religiosity of the condemned warrents fuller treatment. Suffice it to say, however, that the most cynical and disapproving of contemporaries would have conceded that there were few atheists in foxholes (or in the condemned hold), however insufficient they would have viewed such examples of “deathbed,” or last-minute repentance. Even the most impious of criminals, moreover, operated within a context in which courage was inextricably bound up with, and measured against, legitimating concepts such as honor or even the larger metaphysical truths that many, if not most, eighteenth-century men and women still believed were manifested in the “good death”—particularly, an apparent willingness to face suffering and death cheerfully and without flinching. While hardly charitable and certainly not devout, Burnworth seemed eager to situate his courage within a larger moral code:
he valued himself mightily upon being true to his Engagements with his Fellow-Robbers, whom as he said, sooner than betray, he would have suffer’d ten thousand Deaths, and thought that this supposed Virtue would in a great measure atone for the Murder, and all the other wicked Actions of his Life. He was of Opinion, that the Murder of Ball was in itself but a slender Crime, but that it was aggravated by his doing it on the Behalf of so worthless a Rogue as he call’d Kit Leonard.[134]This alternate morality apparently not only excused but demanded certain liberties with the truth: knowing that his own execution was inevitable, while in prison Burnworth claimed to have been solely responsible for a crime for which one Benjamin Jones was about to be hanged, even “offering to take the Sacrament upon the Truth of it.” Later, when it became apparent that this “Skit would not bear,” Burnworth “acknowledg’d [this story] was only a Contrivance between Jones and him, in order to save the other’s Life.” While Jones continued to maintain his innocence, Burnworth prided himself on having “acted always more ingenuously with the World, for that he never deny’d any of his Robberies, or the Murther of Ball, being above such mean Actions; adding, that as he had liv’d with a Pistol in his Hand, so would he scorn to die with a Lye in his Mouth.”[135]
That such claims to courage were perceived by more respectable contemporaries as potentially subversive is illustrated by the vehemence with which writers like the Ordinary of Newgate distinguished between true “Christian Courage” and the “False-Courage” of froward criminals. In a sermon to the condemned (including—surely not coincidentally—William Spiggot and Thomas Cross), the Ordinary defined the former as “the Resisting Heroically the Snares and Temptations of Satan” and “the manfully sustaining in Misfortunes and Calamities which come from God, with Patience and Meekness.” In contrast, “False-Courage,” i.e., the attempts on the part of those “Malefactors sentenced to dye, to appear wholly Careless and Unconcern’d at the great change of Nature … rather shows Obdurateness and Insensibility, than a Manly and becoming Resolution.” And while, with the exception of Cross (whose disruptive and “indecent” behavior elicited complaints even from his former comrade Spiggot), the Ordinary conceded that the condemned were so “attentive” that “no exceptions could be taken … against [their] Behaviour,” nonetheless even the best behaved of them, in his opinion, “entered” too much “in the Notion, that they ought to bear their Misfortunes like Men, without Grief and Sorrow, and without any manner of Fear or Concern at their being so soon to dye.”[136] Similarly, the author of a pamphlet on the lives of Burnworth and his gang characterized “their Newgate conversation” as “void of all decency … outrageously impudent, hardened, and abandoned”; their affectation of fearlessness, “a brutal, not manly courage, for that is quite of another nature.” Rather, such “brutal” (not manly) courage was merely “insensibility as to their condition … an open denying [of] God [and] man.”[137]
Thus, the courage of such men was not only invalidated because it was, according to hostile commentators, only affectation—a kind of macho posturing—but because their supposed ignorance of and/or indifference to the eternal consequences of their behavior undermined any claims on their part to the “rational,” “Christian,” and “true manly courage” that was the only infallible index of moral righteousness. Indeed it would seem that the lower classes generally lacked the requisite sensibility and mental faculties to lay claim to anything more exalted than “that silly contempt of death, which with the Vulgar Passes for Resolution.”[138] “Amongst many odd notions which are pick’d by the common People,” lamented the author of a 1735 collection of criminal “lives,” in reference to Nathaniel Hawes, “there is none more dangerous, both to themselves and unto others, than the Idea they get of Courage, which with them consists either in a furious Madness, or an obstinate Perseverance, even in the worst Cause.” It was unfortunate, but “no wonder” that “a Fellow of his small Parts and Education” would be so “puffed up with the Reputation he had got amongst his Companions in the same miserable Occupation.”[139] The Ordinary of Newgate nonetheless labored heroically to convince Hawes that “Fool-hardiness was not Courage” and “that to be Unconcern’d at his Disasters, was not a laudable Bravery, but a stupid Insensibility.” Under his tutelage, the Ordinary claimed, Hawes “began to alter his Sentiments,” acknowledging that he had subjected himself to the press “not because he would have better Clothes to be hang’d in,” as he had claimed in his trial, “but to evince his Boldness, and to gain Applause among the Gentlemen of the Highway, as he said, for being so brave a Fellow…. “[140] This equation of plebeian “Boldness” with wilful irrationality was echoed in the judge’s final appeal to Hawes after the latter had been sentenced to the peine forte et dure: “what hinders then, that you should submit to so fair, so equal a Trial, and wherefore will you by a Brutish obstinacy, draw upon You, that heavy Judgment which the Law has appointed for those who seem to have lost the rational Faculties of Men?”[141]
By the second half of the eighteenth century, many educated people were beginning to view the peine forte et dure itself as both irrational and unnecessary, one of an increasingly discomfiting constellation of legal practices that enlightened thinkers castigated as barbaric, such as the drawing and quartering of men, and the burning of women for high or petty treason.[142] In an essay in the Annual Register in 1770, two years before peine forte et dure was abolished by statute, a correspondent described the “astonishment” with which two fellow patrons of a coffee-house received the news of “the shocking wretch [George Powditch] who refused to plead to his indictment at Kingston.” Both seemed to agree with the author that the peine forte et dure “was a ridiculous and absurd regulation or institution”; however, the second gentleman, while acknowledging that the “best defence” of the practice “was the infrequency of its application,” explained its continuation in reference to “the preservation of landed property.” The author, joining in the conversation, cited the case of one Walter Calverly, a Yorkshire gentleman who in 1605 underwent the press after murdering two of his children in order to transmit his estate to a third, surviving son—adding, not without some admiration, that he “persevered in bearing the most excruciating pain, with the patience of a proto martyr.”[143] In contrast, all three gentleman clearly remain mystified, not to mention dismayed, at the seemingly irrational “folly of a man [Powditch], who would submit to be dying for a week in agonies inexpressible, rather than put himself upon his trial, by which means he would have a possibility, however slight, of avoiding punishment” and “an easy death” if he could not. The question of whether a man without estate had honor to preserve, or the wherewithal with which to preserve it if he did, does not seem to have occurred to any of the three gentlemen.[144]
In this article I have argued that the attempts of these young eighteenth-century robbers to bargain with and to challenge the court cannot be explained solely in terms of ignorance or misguided vainglory; rather, they opened up a space in which they could for a time both seize the initiative (or, as historians would say, exercise “agency”) and demonstrate their resolution and courage—attributes that were always at a premium, but never more so than in the face of death, the so-called “King of Terrors.” At the heart of such displays of bravura was the rejection of a tribunal apparently calculated to undermine or to suppress such performances. When Edward Burnworth was asked why he had subjected himself to the press, he said “it was because they design’d to make Fools of him and his Comrades, by appointing their Trial for an April-Day” (they were tried on April Fool’s Day).[145] And when at his arraignment Nathaniel Hawes was upbraided by the court for his “Brutish obstinacy,” he “impudently made answer” (and even after his trial, he claimed “that was he to act agen, he would say, [as before]”), “That the Court was formerly a place of Justice, but now it was become a place of Injustice; that he doubted not, but that they would receive a severer Sentence than that which they had pronounced upon him [pressing].” But “for his part,” he concluded, “he made no question of dying with the same Resolution with which he had often beheld Death, and leave the World with the same Courage with which he had lived in it.”[146]
Andrea McKenzie is an assistant professor in the department of history at the University of Victoria <[email protected]>. The author is grateful to John Beattie and Simon Devereaux and the members of the History Staff-Student Seminar at the University of Queensland, as well as four anonymous readers and the editor of this journal, for their encouragement and helpful suggestions.</[email protected]>
Notes
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 J. M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986, 337–38).
2. These quotations and the extract above are from The Proceedings at the Sessions of the Peace, and the Oyer and Terminer, for the City of London and the County of Middlesex 13–15 January 1720/1 http://www.oldbaileyonline.org/html_units/1720s/t17210113-43.html (hereafter Proceedings). In cases where two names are given (e.g., Phillips alias Cross), I follow the contemporary convention of giving preference to the second, except where it is an obvious nickname (e.g., “Handy”). Unless otherwise indicated, all printed primary sources are published in London.
3. Applebee’s Original Weekly Journal 14 January 1720/1.
4. The Ordinary of Newgate his Account of the Behaviours, Confessions and Last Dying Words of the Malefactors that were Executed at Tyburn on the Wednesday the 8th of February, 1720/1, 4 (hereafter abbreviated as Ordinary’s Account, followed by date of execution); Applebee’s Original Weekly Journal 14 January 1720/1; The Daily Post 16 January 1720/1.
5. The Daily Post 14 January 1720/1.
6. Dawks’s News-Letter 3 August 1699 (the prisoner is not identified by name); The Confession and the Execution of the Eight Prisoners suffering at Tyburn on Wednesday the 30th of August, 1676 … (1676), 4.
7. PRO ASSI 94/585; Gentleman’s Magazine August 1735, 497.
8. According to Daines Barrington, a man was pressed to death at the Cambridge assizes in 1741; however, I have been unable to find either any surviving court records or newspaper or pamphlet accounts confirming this report (Observations on the More Ancient Statutes from Magna Charta to the Twenty-First of James I. Cap XXVII …, 4th ed. [1775], 86).
9. Andrew Knapp and William Baldwin, Criminal Chronology; or, the New Newgate Calendar … (1809), 1:214.
10. The relevant statutes are 12 George cap. 20 and 7&8 George IV cap. 28. See Beattie, Crime and the Courts, 337–38; John Langbein, Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago: University of Chicago Press, 1977), 75, 184 n.20.
11. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little & Brown, 1898), 77.
12. As John Langbein points out, “despite fascinating parallels” with torture, “the peine forte et dure is best regarded as a special kind of guilty plea. The defendant underwent a different mode of capital punishment in order to save his estate for his kin”(Torture and the Law of Proof, 76).
13. Alfred Marks, Tyburn Tree: Its History and Annals (London: Brown, Langham & Co., 1908), 41; H. R. T. Summerson, “The Early Development of the Peine Forte et Dure,” in Law, Litigants and the Legal Profession, ed. E. W. Ives and A. H. Manchester (London: Royal Historical Society, 1983), 124; and idem, “Suicide and the Fear of the Gallows,” The Journal of Legal History 21 (April 2000): 54.
14. Sir Thomas Smith, De Republica Anglorum, ed. Mary Dewar (Cambridge: Cambridge University Press, 1982), 112.
15. See for instance Peter Lake and Michael Questier, “Agency, Appropriation and Rhetoric under the Gallows: Puritans, Romanists and the State in Early Modern England,” Past & Present 153 (1996): esp. 75–76, 79–82; Andrea McKenzie, “Martyrs in Low Life? Dying ‘Game’ in Augustan England,” Journal of British Studies 2 (April 2003): 193–96.
16. Quoted in Zachary Babington, Advice to Grand Jurors in Cases of Blood … (1677), 191. According to this statute, prison forte et dure applied only to “Notorious Felons,” not “Prisoners which be taken of light Suspicion.” By the early fourteenth century, “the rule came to apply to all who would not put themselves on a jury” without exception (John Bellamy, Crime and Public Order in England in the Later Middle Ages [London: Routledge and Kegan Paul, 1973], 141).
17. Fleta, ed. and trans. H. G. Richardson and G. O. Sayles, Selden Society, vol. 72 (London: B. Quaritch, 1953), 85.
18. Britton, ed. and trans. Francis Morgan Nichols (1865; repr. Holmes Beach, Fla.: Wm. W. Gaunt & Sons, 1983), 1:27; Summerson, “Early Development of the Peine Forte et Dure,” 119.
19. Vita Edwardi Secundi, ed. N. Denholm-Young (1957), 128, quoted in Summerson, “Early Development of the Peine Forte et Dure,” 116.
20. Thayer, Preliminary Treatise, 80.
21. The Proceedings on the King’s Commission of the Peace, Oyer and Terminer, and Gaol-Delivery of the County-Gaol, held for the County of Surry, at Kingston upon Thames 30 March–4 April 1726, 2. I am grateful to John Beattie for this reference.
22. This was likely the case even in the middle ages; see Bellamy, Crime and Public Order, 142.
23. William Blackstone, Commentaries on the Laws of England (1765–69), 4:325.Whether the accused was maliciously or congenitally mute was established by the jury. In April 1725 at the Old Bailey, when George Armstrong, a “deaf and dumb” man was arraigned for theft, “the Jury enquired if the prisoner stood mute by his own Will, or by the Act of God; and on the Evidence of several Witnesses, who had known him for 12 or 13 Years past [already in court, ready to speak to Armstrong’s character], they gave their Verdict for the latter. Then the Court directed them to enquire into the Felony, in the same Manner as if the Prisoner had pleaded Not Guilty.” After being given a very good character, Armstrong was acquitted (Proceedings 7–10 April 1725 http://www.oldbaileyonline.org/html_units/1720s/t17250407-70.html). See also Beattie, Crime and the Courts, 337.
24. Blackstone, Commentaries. If the offense was clergyable, the prisoner could claim benefit of clergy and be released “even though he was too stubborn to pray it” (4:325).
25. Ibid.
26. Babington, Advice to Grand Jurors, 192.
27. It was however the executioner, acting as the sheriff’s deputy, who carried out the punishment of tying the thumbs of recalcitrant prisoners or pressing mute defendants.
28. Summerson, “Early Development of the Peine Forte et Dure,” 120; see also Bellamy, Crime and Public Order, 142.
29. Raphael Holinshed, Chronicles, comprising the description and histories of England (1586), 1:185.
30. John Mush, “A True Report of the Life and Martyrdom of Mrs. Margaret Clitherow,” in The Troubles of Our Catholic Forefathers Related by Themselves, ed. John Morris, 3rd series (London: Burns and Oates, 1877), 432. A woman arraigned at the Old Bailey in 1676 was sentenced to be pressed, but there is no evidence that this sentence was subsequently carried out (A True Narrative of the Proceedings at the Sessions-house in the Old Bayly … 23–25 August 1676 [London: Printed for D. M.], 7).
31. The Unhappy Marksman. Or a Perfect and Impartial Discovery of that late Barbarous and Unparallel’d Murther Committed by Mr. George Strangwayes (1659 [sic; recte 1658]), 29–30.
32. London Magazine August 1735, 452. Judging by the description of the pressing of Spiggot and Hawes, a board does not appear to have been used at the Old Bailey; rather, the weights seem to have been applied to the prisoner’s bare chest.
33. Cesare de Saussure, A Foreign View of England in the Reigns of George I. & George II., trans. and ed. Mme. Van Muyden (London: John Murray, 1902), 119.
34. The Bloody Murtherer, of the Unnatural Son His Just Condemnation … (1672), 54. The duration of this execution is corroborated in A Most Barbarous Murther, Being a True Relation of the Tryal and Condemnation of Henry Jones and Mary Jones … for Murthering of their own Mother … (1672), 8.
35. Langbein, Torture and the Law of Proof, 76.
36. Cobbett’s Complete Collection of State Trials … (London: Hansard, 1809), 1:914.
37. Langbein, Torture and the Law of Proof, 76. For the discretionary nature of the eighteenth-century criminal law, see Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000).
38. A Brief Historical Account of the Lives of the six notorious Street Robbers executed at Kingston, viz., William Blewet, Edward Bunworth [sic], Emanuel Dickenson, Thomas Berry, John Higges, and John Legee (1726), repr. in G. H. Maynadier, ed., Freebooters and Buccaneers: Novels of Adventure and Piracy (New York: Dial Press, 1935), 381.
39. The Lives of the Most Remarkable Criminals who have been condemn’d and Executed … (1735), 2:178.
40. John Kelyng, A Report of Divers Cases in Pleas of the Crown … (1708), 28. By the eighteenth century, this practice seems to have been adopted by other assize courts; certainly mute prisoners’ thumbs were tied at the Surrey assizes in Kingston, as is demonstrated in the case of Edward Burnworth.
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/1710s/f17160517-1.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.
45. Saussure, Foreign View of England, 119–20.
46. William Hawkins, Treatise on the Pleas of the Crown, 8th ed. (London: S. Sweet, 1824), 2:464; Summerson, “Suicide and the Fear of the Gallows,” 53–54.
47. Proceedings 13–15 January 1720/1 http://www.oldbaileyonline.org/html_units/1720s/t17210113-43.html.
48. Beattie, Crime and the Courts, 338; Saussure, Foreign View of England, 120.
49. The Suffolk Parricide. Being the Trial, Life, Transactions, and Last Dying Words, of Charles Drew, of Long-Melford, in the County of Suffolk … (1740), 42.
50. Marks, Tyburn Tree, 41.
51. Proceedings 27 February–1 March 1733/4 http://www.oldbaileyonline.org/html_units/1730s/t17340227-6.html. Durant was convicted of single (non-capital) felony.
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” (Francis Bacon, A Collection of Apophthegms, New and Old [1674], 29).
54. News from Newgate: A Gaol-Delivery for the City of London and County of Middlesex … [3–10 September] … (1673), 6.
55. Lives of the Most Remarkable Criminals, 3:62–63.
56. An Authentic Account of the Trials, Behaviour, and Dying Declaration, of the Five Malefactors, who were Executed at Kennington-Common, on Monday the 23d of April … [1770], 5.
57. 4 & 5 William and Mary, cap. 8. See J. M. Beattie, Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001), 231; 377–79.
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), 10–13; Hell upon Earth: or the most Pleasant and Delectable History of Whittington’s Colledge, Otherwise (vulgarly) called Newgate … (1703), 1–9; W. J. Sheehan, “Finding Solace in Eighteenth-Century Newgate,” in Crime in England, 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), 229–45; R. B. Pugh, “Newgate between Two Fires. Part II,” Guildhall Studies in London History 4 (April 1979): 210–15.
59. Proceedings 28 August–1 September 1741 http://www.oldbaileyonline.org/html_units/1740s/f17410828-1.html.
60. An Account of the Lives of the Most Notorious Murderers and Robbers, Edward Burnworth alias Frazier, William Blewet, Emanuel Dickenson, Thomas Berry alias Teague, John Higgs, and John Legee … 2nd ed. (1726), 58; Captain Charles Johnson, A General History of the Lives and Adventures of the Most Famous Highwaymen, Murderers, Street Robbers, &c; … 2nd ed. (1742), 476; Parker’s Penny Post (4 April 1726).
61. Ordinary’s Account 22 December 1721, 5; Select Trials at the Sessions-House at the Old Bailey … To which are added, Genuine Accounts of the Lives, Behaviour, Confessions, and Dying Speeches of the most eminent Convicts (1742), 1:111.
62. Summerson, “Early Development of the Peine Forte et Dure,” 124.
63. Robert Calef, More Wonders of the Invisible World, or, the Wonders of the Invisible World Display’d in Five Parts … (1700), 106.
64. PRO ASSI 94/585; The Gentleman’s Magazine August 1735, 497.
65. Summerson, “Suicide and the Fear of the Gallows,” 54; Ordinary’s Account 8 February 1720/1, 4.
66. State Trials, 1:913–14.
67. Ordinary’s Account 8 February 1720/1, 2, 3.
68. Saussure, Foreign View of England, 120.
69. Barrington, Observations on the More Ancient Statutes, 87. Significantly, peine forte et dure could theoretically extend not only to those who refused to plead, but for anyone who in general rejected the tribunal. After a defendant in 1664 challenged thirty-six prospective jurors, so that he could not be tried, the panel of judges decided “that he should be hanged and not pressed to death” despite the fact that precedent suggested “that he should be pressed as a Person that refused the Law” (Kelyng, Report of Divers Cases in Pleas of the Crown, 36).
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 John Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), chapter 1, esp. 57–60. For the importance of character, see Peter King, “Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800,” Historical Journal 27 (1984): 34–43, and Beattie, Crime and the Courts, 613. 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).
72. The Mirror of Justices, ed. William Joseph Whittaker and Frederic William Maitland, Selden Society, vol. 7 (London: B. Quaritch, 1895), 157; see also 173.
73. Charles L. Wells, “Early Opposition to the Petty Jury in Criminal Cases,” The Law Quarterly Review 30 (January 1914): 101.
74. The “truism” of the “self-informing” jury is described—and qualified—by Edward Powell in his “Jury Trial at Gaol Delivery in the Late Middle Ages: The Midland Circuit, 1400–1429,” in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. J. S. Cockburn and Thomas A. Green (Princeton: Princeton University Press, 1988), 78–116 (quotations on 79); however, see also Thomas A. Green, “A Retrospective on the Criminal Trial Jury, 1200–1800,” ibid., 370.
75. J. M. Beattie, “London Juries in the 1690,” in Twelve Good Men and True, 251; see also idem, Policing and Punishment, 266–69.
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).
77. Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay et al., Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England (London: Allen Lane, 1975), 26, 25.
78. King, Crime, Justice and Discretion, 372, 346. The classic formulation of early modern English execution as a exercise in social discipline, influenced in large part by Michel Foucault, is J. A. Sharpe, “Last Dying Speeches: Religion, Ideology and Public Execution in Seventeenth-Century England,” Past & Present 107 (1984): 144–67. Approaches emphasizing popular resistance and/or inversion or reappropriation of the normative message intended by the eighteenth-century gallows include Peter Linebaugh, “The Tyburn Riot Against the Surgeons,” in Albion’s Fatal Tree, 65–117, and idem, The London Hanged: Crime and Civil Society in the Eighteenth Century (London: Allen Lane, 1993); V. A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994), esp. chap. 4; Thomas W. Laqueur, “Crowds, Carnival and the State in English Executions, 1604–1868,” in The First Modern Society: Essays in English History in Honour of Lawrence Stone, ed. A. L. Beier, David Cannadine, and James M. Rosenheim (Cambridge: Cambridge University Press, 1989). For more recent work on the English gallows as a “contested” and “unstable” space, see Lake and Questier, “Agency, Appropriation and Rhetoric”; Hal Gladfelder, Criminality and Narrative in Eighteenth-Century England: Beyond the Law (Baltimore: Johns Hopkins University Press, 2001); King, Crime, Justice and Discretion, 334–52; and McKenzie, “Martyrs in Low Life?”
79. King, Crime, Justice and Discretion, 372.
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), 10; William Eden, Principles of Penal Law (1771), 167.
82. Proceedings … held for the County of Surry, at Kingston … (30 March–4 April 1726), 2.
83. James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven and London: Yale University Press, 1990).
84. The Proceedings at the Sessions at the Old-Baily, August the 27th and 28th … (1679), 4.
85. The (unfavorable) comparison between little rogues and lawyers and politicians was a popular one; for a dialogue between Julius Caesar and the recently executed but “honester” burglar Jack Sheppard, see The British Journal 4 December 1725; for the equation of the law with a spiderweb, see S. R., Martin Markall Beadle of Bridewell; his Defence and Answers to the Bellman of London … (1610), reprinted in The Elizabethan Underworld, ed. A. V. Judges (London: Routledge and Kegan Paul, 1965), 391–92.
86. Samuel Garth, The Dispensary (1699), Canto I, 1; Johnson, A General History of the Lives and Adventures of the Most Famous Highwaymen, Murderers, Street Robbers &c; … (1734); Captain Alexander Smith, Memoirs of the Life and Times of the Famous Jonathan Wild. Together with the History and Lives, of Modern Rogues … (1726).
87. Langbein, Torture and the Law of Proof, 75.
88. Barrington, Observations on the More Ancient Statutes, 84n.
89. State Trials, 3:913–14, 3:929–30n.
90. Bellamy, Crime and Public Order, 142; Luke Owen Pike, A History of Crime in England (London: Smith, Elder & Co., 1873), 1:211.
91. John Knott, Discourses of Martyrdom in English Literature, 1563–1694 (Cambridge: Cambridge University Press, 1993), 82; McKenzie, “Martyrs in Low Life?” 194–96.
92. Mush, Martyrdom of Mrs. Margaret Clitherow, 416, 413, 436, 418, 428, 431–32.
93. Ibid., 435.
94. John Gerard, The Autobiography of a Hunted Priest, trans. Philip Caraman, ed. Graham Greene (New York: Image Books, 1955), 79.
95. Lake and Questier, “Agency, Appropriation and Rhetoric,” 79.
96. Lisa Silverman, Tortured Subjects: Pain, Truth and the Body in Early Modern France (Chicago and London: University of Chicago Press, 2001), 8–9.
97. McKenzie, “Martyrs in Low Life?” 190–91.
98. Bloody Murtherer, 17, 50.
99. Ibid., 54.
100. “Homo Religiosus: Masculinity and Religion in the Long Eighteenth Century,” in English Masculinities, 1660–1800, ed. Tim Hitchcock and Michèle Cohen (London and New York: Longman, 1999), 105.
101. The Acts and Monuments of John Foxe, ed.George Townsend (New York: AMS Press, 1965), 5:550; 8:102; 8:326.
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.
107. Ibid., 165.
108. Unhappy Marksman, 21, 26, 22.
109. Ibid., 26–27.
110. Smith, Life and Times, 168; Unhappy Marksman, 29–30.
111. Lives of the Most Remarkable Criminals, 1:110.
112. Linebaugh, “Tyburn Riot Against the Surgeons,” 115. For the popular association between “game” criminals and bridegrooms, see [Daniel Defoe], Street-Robberies, Consider’d (1728), 52; Fog’s Journal 19 March 1737, 169. 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. 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.