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Why was Charles I not pressed by peine forte et dure to force him to plead to treason in front of the High Court of Justice for the trial of King Charles I?

Under English common law, peine forte et dure was an ancient punishment compelling an accused to enter a plea. Refusal to do so could stop the court from proceeding. An accused might not enter a plea to avoid having his property (inheritance) forfeited upon conviction. In order that the court could proceed, the court will try to compel an accused to do so on pain of peine forte et dure, i.e. the accused was weighed down with stones pressing on their body until the torture forced a plea or they died. Source: Parliamentary Debates (1828)

Charles I was aware of this. Additionally, aristocrats accused of crimes other than treason used the refusal to plea to die before conviction, such that their property could be passed on. Brittanica and other sources claim that standing mute on treason was considered a guilty plea, but without explanation.

Additionally, the innovation of trying a king with a newly created court indicated the capacity for innovative law in the majority faction of the rump of the commons. This means that regardless of the common law on treason pleas (which without explanation is difficult to ascertain whether it would have applied to Charles), that innovation could have occurred.

George Smith Green (1752) Oliver Cromwell an historical play seems to be under a similar delusion to me, in that he proposes that the King be pressed in his action. Richard Lee Bradshaw (2010) God’s Battleaxe: The Life of Lord President John Bradshawe 205-6 makes the claim that this is incorrect as treason accusations took standing mute as guilty. Again, without explanation of the emergence of this reading of standing mute. Nor does it address the innovative law making of the rump / commission / High Court.

Why was Charles I not pressed to plea or death?

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    Do you truly mean "common law courts", or should that read "Courts of Common Law"? The former is a descriptive phrase according to common English usage, while the latter is (to the extent of my legalese) the appropriate legal terminology for courts proceeding according to The Common Law. I believe the distinction is important on a question that hinges on legal subtleties. – Pieter Geerkens Dec 18 '18 at 1:20
  • @PieterGeerkens cheers, actioned. – Samuel Russell Dec 18 '18 at 2:05
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    Considering how controversial it already was to execute Charles, one suspects they were astute enough to not push it though. – Semaphore Dec 18 '18 at 6:39
  • The unusual legal fiction is more along the lines of “stop killing yourself,” but I think it’s worthy as a counter factual for @PieterGeerkens to outline the social opposition to Catholics dying by it, and for perhaps another user to outline the revolution’s own attitude if available. That a playwright of 100 years later considered it is worth while. – Samuel Russell Dec 18 '18 at 7:37
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    Citations would improve this question – Mark C. Wallace Dec 18 '18 at 15:26
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It's one thing to execute your king for making war on Parliament. The ensuing execution - by beheading for a peer or hanging for a commoner - had the saving grace of being a routine public affair for the time, one that regularly attracted crowds out for a day's entertainment. Even women and children were known to enjoy the spectacle.

It is another thing entirely to crush your king, whether in public or private, under a successively increasing weight of rocks. The death of Margaret Clitherow in 1586 by "the hard diet" was still within living memory at the time of Charles' execution:

Margaret Clitherow, an Elizabethan recusant who may or may not have been pregnant at the time, was arraigned for harbouring Catholic priests. Hoping to protect her family, she stood mute at her trial and was sentenced to peine forte et dure. Margaret’s execution did not take place in the depth of a prison as was normal, although it is not entirely clear why.

Rather, the execution took place at the Toll Booth on the Ouse Bridge, just yards from where she had been imprisoned, while still making an effort to maintain privacy. John Mush described the venue as a “close house, as obscurely as was possible,” thus not the public scaffold on which the woman in Gunpowder was pressed. Much like the woman in Gunpowder, Margaret was stripped naked in what Peter Lake and Michael Questier have described as an “obscene, virtually pornographic, shaming ritual,” although as the medieval records would suggest, this was a typical part of the act, intended to enhance the defendant’s suffering and prompt humility before God.

Margaret was stretched by the limbs with ropes to prevent resistance, a sharp stone “as much as a man’s fist” was placed under her back — a twist that I have not encountered anywhere else — while a door was placed on her chest. Her spine snapped when the jailer began to pile irons and stones on the board, weighing close to seven or eight hundred pounds, causing her ribs to “burst forth of the skin.”

The immensity of the weight, as well as the speed of her death mark a vast departure from the medieval practice and reflect the hostility towards English Catholics in the era ensuing the Jesuit crisis, and a group of justices determined to make a spectacle of her death in order to deter other English Catholics from imitating her model. Elizabeth I was so appalled by Margaret’s torturous death, that she wrote a public apology to the people of York, claiming that the manner of her death was inappropriate for a woman.

Update

The Acts and Ordinance of the Interregnum, 1642-1660 are digitized and online, including the January 1649 "Act of the Commons of England Assembled in Parliament, for Erecting of a High Court of Justice, for the Trying and Judging of Charles Stuart, King of England.":

... And the said Commissioners or any Twenty or more of them, shall be and are hereby Authorized and Constituted an High Court of Justice ... and to take order for the charging of him the said Charles Stuart with the Crimes and Treasons above mentioned; and for the receiving of his Personal Answer thereunto ..., or in default of such Answer, to proceed to final Sentence, according to Justice, and the merit of the Cause, .... [my emphasis]

Note the perceived necessity to explicitly specify, without reference to custom or tradition, "or in default of such Answer, to proceed to final Sentence". This, along with the continued use of peine forte et dure under English Law for another century until its abolition in 1772, clearly refutes any claim that there was at this time a tradition that failure to plead was deemed a plea of guilty.

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    They'd certainly be horrified by crushing a king to death, but executing a king at all was controversial, as seen by the debate at the time, so it was probably more of a case of "if we have to do this horrible thing let's do it in as civilised a fashion as possible", rather than "beheading is ok, crushing isn't". – Stuart F Dec 18 '18 at 16:30
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Parliament was already walking on legal thin ice

Biggest legal dilemma facing Rump Parliament in the trial of Charles I was the question do they actually have the authority to judge him. Defense of Charles was actually exactly that, he had divine rights of king, he was set up to rule England by the will of God, and no earthly power could take this right from him or judge him. Although this sounds absurd these days, in those times it was a valid and serious legal doctrine. Before the trial Parliament was already split on this matter, and this is the reason why it became "rump" i.e. why some members opposing the trial were expelled. Anyway, Parliament decided they could judge the king, by that act they already established something unprecedented so far , and in fact revolutionary.

Now comes the question of peine forte et dure. Long before Charles I there was established legal doctrine that person could be judged by his peers only if he willingly submitted to this judgement. Of course, tis would open loophole for all kinds of criminals, so peine forte et dure was devised as sort of "harsh prison" for those refusing to plead before the court. Over the ages, it devolved first in to torture, and then to very brutal and barbaric way of execution, as witnessed in case of Margaret Clitherow. It was very perversion of law and justice that Parliament sought to remedy by removing the king. There was another question in there - defendant had to submit to trial by his peers, and nobody was willing to claim that Charles I was their peer (it was too revolutionary at that time, notion that monarchs are just ordinary man like others came only at the time of French Revolution ) . Instead, when judging Charles I, Parliament simply found the formula of him being judged by English people as a whole .

Therefore, they simply accepted his refusal to plea as admittance of guilt (pro confesso), as was legal custom at this time. It actually helped them to build their case and eventual death sentence.

  • The statement "as was legal custom at this time" is extraordinary - what evidence do you have for this? The entire point of peine forte et dure is that there was no legal custom at all in the absence of a plea. – Pieter Geerkens Dec 20 '18 at 12:50
  • @PieterGeerkens "The court proceeded as if the king had pleaded guilty (pro confesso), as was the standard legal practice in case of a refusal to plead. However, witnesses were heard by the judges for "the further and clearer satisfaction of their own judgement and consciences" – rs.29 Dec 20 '18 at 18:37
  • No matter how many times Geoffrey Robertson's statement is quoted on the internet, that does not change the fact that the assertion is first made in his 2005 book and is clearly refuted by the very existence of "peine forte et dure". Further the Parliament of the U.K. saw necessary in the early 19th century to enact that by Statute, before then realizing the absurdity and inherent injustice of it and asserting the opposite within five decades. – Pieter Geerkens Dec 20 '18 at 18:47
  • @PieterGeerkens From the sources I could find " the punishment meted out to those men and women charged with capital felonies, excepting high treason, who refused to plead to their indictments" . web.archive.org/web/20120207082401/http://… So it is not just Robertson, others confirm it was not used in trials for high treason . – rs.29 Dec 20 '18 at 19:19
  • That is again a second hand claim, from a source explicitly referring to practice following the 1660 restoration: "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)." – Pieter Geerkens Dec 20 '18 at 19:26
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If it pleases your honour, allow me to address the Court of HSE:

  1. The Learned Samuel Russell is of the opinion: "Charles I was aware of this." I submit, this is immaterial to the matter at hand, simply, it was not up to the late Charles I to decide on his own punishment. On the contrary, I do submit, it does matter if the newly constituted "High Court of Justice" was aware of this ancient punishment, namely, "peine forte et dure". Hence, if it pleases, my learned friend has misconstrued this enquiry and misdirected the Courts attention.

  2. A further point, your honour, on the matter of this new Court, sitting on that fateful day of December 1649. With the Lord President Bradshaw presiding, it had no authority nor expertise as the two Chief Justices (of the King's Bench and of Common Pleas), Henry Rolle and Oliver St John as well as Lord Chief Baron Wilde of the Exchequer Court were not present to preside at the King's trial. All 3 honourable members of the Bench refused to serve because they viewed the new High Court of Justice as outside the law. It is an axiom of English law, universally accepted at that time, that all law and justice proceeded from the sovereign. (This I take from The Honourable Michael Kirby, I confess.)

  3. Another point of evidence on the matter of authority, is the presence of the Commissioners. The 62 Commissioners present at Westminster Hall during the King's trial, were not learned members of the Bench. However their deliberations nearby at the Painted Chamber of the Old Palace of Westminster often ended with the Commissioners instructing the Court. In the words of the Honourable Michael Kirby: "a motley crew of the Commons -- a kind of jury but a specially selected one". This is most irregular, both constitutionally and procedurally. It should be noted, at the end of the trial, only 59 of the 62 Commissioners signed the death warrant of King Charles I.

  4. To answer the enquiry of my learned friend Russell, namely, why was Charles I not forced to enter a plea? We take note this motley crew (Commissioners of rump of the Commons, the Lords being not present) made efforts to give a semblance of justice to the proceedings. The fact that they felt an obligation to conduct a trial at all is itself noteworthy. It is a reflection of the power of the imagery of the trial process upon the imagination of the English people. This, I submit, is the real reason why peine forte et dure was not meted out to Charles I. (Please note, your honour, a proceeding - whether civil or criminal - entails an entire process of submission and counter-submission. Hence, it is not an event, but a process).

  5. Clearly, your honour, it would defeat the very purpose of a trial to have the accused be submitted to forced entering of a plea if one were intending to show justice was being served? The proceeding would have have failed to achieve its objective.

  6. Much as I have enjoyed the debate by my co-conspirators, Learned rs.29 and Learned Pieter Geerkens, on the procedure of administering peine forte et dure, I wonder if Charles I should have entered a plea of admission to the charge of treason, to himself. For this purported Parliament was never an agent of the Sovereign. In the words of the Honourable Michael Kirby:

By the standards of today, many fundamental rights were breached or ignored in the way King Charles' trial was conducted. Although they were different times with much brutality, it is instructive to notice the extent to which what we now call fundamental rights were extended or denied to the royal prisoner. I leave aside the large debate as to whether capital punishment is contrary to fundamental human rights . Now, by international law, anyone sentenced to death has the right to seek pardon or commutation of the sentence. The King was denied the chance to appeal to a true Parliament, the only body that might have been relevant in his case. His deprivation of liberty, and ultimately of his life, was by the power of a purported Parliament and not by a procedure established by law. He was not informed at the time of his arrest of the charges against him . Indeed, until the trial began, he was not informed of the precise accusations. Nor was he brought promptly before a judge or other officer authorised by law to exercise the judicial power . Instead, he was kept in close custody in successive isolated places of detention whilst his accusers decided what they would do with him. He had no access to a court to invoke the Great Writ to secure his liberty . Although he was treated with courtesy and dignity, he was not treated with humanity . He was kept away from his family, friends and advisers. He was surrounded by guards, informers and pimps engaged by the army for surveillance.

  1. Finally, if it matters to the Court of HSE and to the current enquiry, "the trial and execution of the King were not among the initial objects of the Civil War which broke out between the King and the English Parliament in 1642" (Again, words of wisdom from the Honourable Michael Kirby).

An ancillary, if it pleases. There never was a Court of the Common Law. Perhaps the Court of the Common Pleas (or Common Bench)? But I digress.


Merrry Christmas!


All quotes and references to the Honourable Michael Kirby are from "The Trial Of King Charles I - Defining Moment For Our Constitutional Liberties", London - Great Hall, Gray's Inn, (Friday, 22 January 1999). Source: High Court of Australia.

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