Why would anyone choose to stand mute and risk peine forte et dure? Chapter 5 looks to the evidence of the jail deliveries to re-examine the leading explanations put forward by historians. From the time of Blackstone, historians have rationalized a defendant’s silence as a means to rescue his heir’s birthright from felony forfeiture: if he dies unconvicted, his lands (although not his chattels) will be safe from the Crown’s escheator. Thus, a man who feared conviction chose silence in order to protect his family’s welfare. The second most popular theory presumes that the defendant was in fact guilty. Knowing what awaited a felony conviction, the silent defendant opted for a more private form of death that was less humiliating personally and for his family. This chapter tests these theories against the medieval evidence, while also investigating other reasons why accused felons chose to stand mute. In particular, this chapter argues that standing mute was a practical delaying tactic, often combined with other means of postponing trial, such as: claiming benefit of clergy, challenging jurors, applying for the king’s pardon, turning approver, and even sometimes pleading the belly.

Peine forte et dure was the sentence imposed on suspected felons who stood mute, that is, who refused to plead. Chapter 2 speaks to the process of standing mute in the courts of medieval England, with the underlying goal of assessing the challenges an accused felon faced in negotiating the legal process sufficiently to develop a solid defense strategy. Not only were there multiple means of standing mute, but silence only sometimes functioned as a refusal to plead. Distinctions were made based on venue, process, and the nature of the charge. Historians have often assumed that medieval justices, like their early modern counterparts, did not permit silence upon appeal or treason. The medieval evidence demonstrates that these rules developed late and were enforced at the discretion of the justices. Gender also mattered in the formulation of a defense strategy: women rarely opted to stand mute, but those who did were in dire straits. The one redeeming feature for the defendant is that the king’s justices acted as counsel for the defendant, meaning that they were tasked with explaining the intricacies of pleading procedure to the defendant so that he might make an informed decision.