5 - Why Stand Mute?

Summary

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.