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History of Crime, and is supported by the authority of the late Mr Justice Stephen. At one time a man charged with a serious offence was tried by ordeal; but by paying money to the king, it was possible to get the exceptional privilege of a trial by jury. Thus, when the accused was asked how he would be tried, his answer originally ran,
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(equal to by ordeal), or
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(equal to by jury), since to put yourself on the country meant to submit yourself to this last. But trial by ordeal was abolished about 1215, and the alternative was a privilege to be claimed, not a necessity to be endured. Offenders soon discovered that by standing mute and declining to claim this privilege, they put the Court in a difficulty. The ideas of those distant days were simple exceedingly, and a legal form had strange force and efficacy. To put a prisoner before a jury without his consent was not to be thought of; but how to get his consent? At first the knot was rather cut than loosened. Thus, in some cases, the accused were put to death right off for not consenting to be tried
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Then this was held too severe, and under Edward I., in the proceedings of the Parliament of Westminster, occurs the earliest definite mention of the punishment. It was enacted that notorious felons refusing to plead should be confined in the _prison forte et dure_. Here they went
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and only eating and drinking on alternate days as already set forth. It was bad enough, no doubt, but not of necessity fatal. So the authorities perceived, and they again cut the knot by a policy of starvation. So one infers from the case of Cecilia, wife of John Rygeway, in the time of Edward III. Cecilia was indicted for the murder of her husband; she refused to plead. Being committed to prison, she lived without meat or drink for forty days; and this being set down to the Virgin Mary, she was thereupon allowed to go free. This procedure seems to have been found too slow, and the increase of business at the assizes seemed like to end in a hopeless block. Were the judges to encamp in a country town while the prisoners made up their mind as to pleading? Something was wanted to
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the stubborn rascals; and under Henry IV., in the beginning of the fifteenth century, the
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_forte et dure_ became the
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_forte et dure_: with the consequence that, if the accused declined to plead, there was an end of him in a few hours, the provision of bread and water being a mere remnant of the older form of sentence. This procedure lasted till 1772, when the 12 Geo. III., c. 20 made
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In 1827 it was enacted by 7 and 8 Geo. IV., c. 28,