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22.08.13 Butler, Pain, Penance, and Protest

22.08.13 Butler, Pain, Penance, and Protest

Butler takes on an overlooked but disreputable chapter of English legal history, the practice of peine forte et dure. Literally translating to “strong and hard penance,” peine forte is a difficult concept to pin down in precise terms. Despite its name, it was not strictly a punitive measure. Although it involved imprisonment, it was reserved for any accused person who refused to submit a plea in court, and as a result had been found neither guilty nor innocent. It was also not an act of torture. Although intended to drive resistant defendants out of their stubbornness through prolonged discomfort, it was clearly distinct from the infliction of pain to extract information or confession. It also lacked consistency in practice. While it inevitably involved strict and solitary confinement, it might be accompanied by any combination of enforced prayer, reduced diet, or weighted restraint. It was also not commonplace. Butler’s central data-set consists of 481 instances of defendants refusing to plead between 1300-1399--slightly fewer than five cases per year. Yet despite this small number of witnesses, the gesture had some potency, and an obvious purchase on the contemporary imagination. As Butler stresses, cases tend to occur in clusters, suggesting that when one defendant stood mute their decision had sufficient weight to inspire others to similar action. It also seeps into wider literary and religious culture, colouring the work of authors as diverse as Langland, Grosseteste, John Mirk, and the nameless writers of the Corpus Christi pageants. Butler hunts out these various traces, assembling material from multiple discourses and texts; such a wide-angle approach is perhaps the only way to understand her subject, which after all is rooted in absence of language, and, as a consequence, can only be glimpsed in the shape it leaves on the world, or the spaces around and in which it took form.

Much of the book’s energy is focused on various misconceptions of peine forte that have prevented it from being properly understood as a legal mechanism. As Butler points out, the practice has tended to be read against two specific early modern sources: John Mush’s lurid account of Margaret Clitherow’s death at York in 1586, and Blackstone’s claim that it stands as the supreme “monument of savage rapacity” inflicted by “lordly tyrants of feudal antiquity.” Needless to say, Butler’s analysis gives the lie to these judgements. In the first place, in its medieval form, it was not designed to serve as a spectacular, public, and immediate form of death, like Clitherow’s wretched end at York Tollbooth. Although it is clear that peine forte might result in the death of its sufferer, and that such an outcome might even be its stipulated purpose, it was usually a drawn-out process designed to erode the obstinacy of non-pleaders. The overkill of the Clitherow case--with its rib-crushing and spine-breaking in full public view--was a deliberate perversion of precedent, one that reshaped a coercive device into judicial theatre. It was also clearly not an act of wanton, destructive cruelty. From the first it was amelioratory and penitential in intent, taking an obvious lead from ascetic strands in devotional culture; it not only sought to compel defendants to enter a plea but aimed to remedy their rebellious souls through mortification and privation. There is also evidence that some jurists sought to fix rational limits around its performance. Although it is unclear that any restrictions were implemented consistently in practice, the Mirror of Magistrates urges limiting the weight of restraints and the type of offender to whom it might be applied, preferring to reserve peine forte for the most notorious criminals alone. In fact, the entire exercise seems to have started life as a more closely regulated version of the starvation and imprisonment arbitrarily imposed by Angevin kings. But more gravely still, when seen through these post-medieval lenses, peine forte can only prove inexplicable, a “piece of the puzzle that does not fit” the larger history of legal reform in the long twelfth century (190). After all, it seems to jar with the conventional, progressivist narrative that sees the period as a gradual shedding of early medieval barbarism in favour of a more enlightened and rational system. Given that the same period saw the emergence of jury trials and disappearance of ordeals, it can only seem a curiously retrograde step, pointing backward to a period of primitive cruelty rather than forwards to modern jurisprudence.

Dismantling the last of these preconceptions proves especially key to Butler’s discussion. As she demonstrates, peine forte was not some historical aberration, but was deeply entangled in the same judicial revolution out of which trial by jury took shape; if anything, it is really the twin and shadow of the jury trial as an institution. In simple terms, its very existence is tied to the emergence of the jury, since justices would not have needed a remedy for non-compliance in the first place if the new system had met with universal acceptance. But at the same time, it was founded on the same priorities that informed the use of juries, especially the importance of securing spoken consent from the accused. To illustrate how strongly English culture cherished legal consent, Butler puts forward the case of Thomas of Lancaster, who was denied right to reply during his trial for treason against Edward II; as she notes, such a breach of due process was incendiary for Thomas’ contemporaries, and managed to elevate this vain, power-hungry egoist into the centre of a popular cult. Peine forte was at root a means of protecting verbal pleas as well as furnishing justices with a useful weapon against non-cooperation, especially since the high-speed conditions under which medieval English courts operated did not afford the luxury of patience.

Exactly why defendants should have waived this precious right to have their day in court is a question of particular prominence for Butler. She finds that several potential motivations could underpin an individual’s refusal to plead. Although these moments have customarily been seen in polarised terms, either as a presumption of guilt or final act of defiant heroism, Butler emphasises that economic and practical considerations might just as easily inform them. Given the danger of relinquishing their property to the crown if found guilty, silence would be an attractive option to wealthy defendants who wished to leave their possessions to their heirs, such as Hugh le Bevere, a London vintner tried for murdering his wife in 1336, who held goods in excess of £12 at the time of his death in prison. Such a strategy clearly could pay off: in 1317, when John of Cleasby took part in a rebellion against Edward II, he preferred to die in hard prison rather than face a jury, a move that successfully saw his properties transferred to his heirs while those of his collaborators were forfeit. Silence might also be a delaying tactic, perhaps in the hope of securing a pardon, pleading the belly, seeking benefit of clergy, or even turning approver and snitching on one’s underworld colleagues. But there are also signs of more ideological motivations at work too. While we might see trial by one’s peers in the same positive terms as the medieval authorities, Butler takes pains to point out that there are many reasons why it might have provoked opposition. After all, the five decades between the Assizes of Clarendon in 1166 and the Fourth Lateran Council of 1215 saw a rapid contraction of options, as compurgation, ordeals, and trial by combat each fell by the wayside, any of which might be more preferable for a defendant; at the same time, successive kings took homicide out of the hands of local courts and placed it under their own jurisdiction. When seen in these terms, standing mute could be a means of protesting this arrogation of justice, its removal from the hands of God into those of mere men. Indeed, outbreaks of silence can be plotted against wider discontent with royal authority: the lacklustre and cackhanded responses of Edward II and Edward III to the famines of the early fourteenth century coincide with recognisable upticks in failures to plead. In fact, this part of the discussion brings into question yet another misconception of the period, the tendency to see the medieval peasantry as lumpen, passive, and conservative. On the contrary, Butler’s analysis reveals that even in their silence they could be highly eloquent.

As this brief summary should make clear, this is a rich, meticulous and highly suggestive study. Despite its length, it is eminently readable. Aside from the general clarity of the prose, which is never less than direct and expressive, the body chapters are split into easily digestible subsections, ensuring that even the densest stretches of analysis are readily navigable and that the main arguments remain in view. At every step Butler also underscores the crucial importance of viewing medieval practices within the priorities and obligations of their culture, and not from the anachronistic and judgemental standpoint from which they are often viewed. Her holistic approach also has the added bonus of giving valuable insight into a number of areas tangentially related to her main topic. Such is her deft command of the materials that the book also doubles as a useful primer for numerous aspects of medieval culture, especially in her vivid accounts of the conditions medieval prisoners could expect to face, or of those under which trials were conducted. It also helps that the cases themselves are often eye-opening, being by turns poignant and gruesome. In the former category falls the case of a woman hanged for killing a man in self-defence, despite the judge’s assurances that acquittal was likely; in the latter comes John Mayhew, who took his feigned muteness to such an extreme that he gnawed through his own tongue while in custody. In short, this book is a major piece of scholarship, one that can rightly take its place among other recent challenges to the facile stereotype of a heedlessly and uncritically barbaric age.