FORTE ET DURE - The Law Mind Legal Dictionary

FORTE ET DUREAuthored

The Law Mind • 838 words

Definition

Forte et dure (Latin/Law French: "strong and hard") is the historical term for the practice of pressing an accused person with heavy weights as a method of coercing a plea in English criminal proceedings. When a defendant in a felony case refused to enter a plea — standing mute rather than submitting to trial by jury — the court could not proceed to judgment without a plea. The response to this refusal was peine forte et dure (the fuller form of the phrase), a form of coercive torture in which the prisoner was laid on the ground, and progressively heavier stones or iron weights were placed upon the chest until the accused either agreed to plead or died. Death under pressing meant that the defendant's property was not subject to forfeiture (as it would have been upon conviction), making the ordeal a strategic, if lethal, choice for those with estates to protect for their heirs.

The term is sometimes shortened simply to forte et dure but is most commonly encountered in legal sources as peine forte et dure, the full Law French phrase meaning "strong and hard punishment" or "hard and forceful pain."

Common Confusion

Forte et dure is occasionally confused with ordeal generally, or with torture used to extract confessions. The distinction is important: peine forte et dure was not used to obtain information or a confession — it was used solely to compel a plea so that a criminal trial could proceed. It operated on procedural necessity, not evidentiary extraction. It is also distinct from pressing as used in other historical contexts (such as naval impressment). Researchers encountering "pressing to death" in historical records should confirm the procedural context before assuming torture for confession rather than compulsion of plea.

Why It Matters in Research

This term appears almost exclusively in historical English criminal procedure sources and is effectively obsolete in any operational legal sense. Researchers will encounter it in:

— Pre-19th century English criminal trial records, particularly felony proceedings where defendants stood mute.
— Historical treatises on criminal procedure, where the doctrine of standing mute is discussed.
— Discussions of the right to plead and the development of modern default-plea rules. In English law, peine forte et dure was abolished in 1772 (12 Geo. III, c. 20), replaced by a rule treating silence as a plea of not guilty. American jurisdictions followed with equivalent reforms, and modern practice uniformly treats a mute defendant as having entered a not guilty plea.

The key research trap is anachronism: reading the term into modern contexts is an error, but it appears in historical American sources (particularly colonial-era records) where English procedure was still operative. Researchers working in early American criminal records should be alert to the term as evidence of the persistence of English practice in colonial courts even where the full torture mechanism may not have been implemented.

The term also surfaces in constitutional history scholarship around the right against self-incrimination and the evolution of the accused's right to testify. Some scholars treat peine forte et dure as a historical antecedent to Fifth Amendment concerns, though the doctrinal connection is indirect.

Historical Dictionary Support

The source dictionaries provided do not contain substantive entries directly for forte et dure or peine forte et dure. Black's entry returned relates to Bills of Pains and Penalties — a related but distinct concept concerning legislative punishment — which shares only the general theme of extraordinary punitive process. The Rapalje & Lawrence entry returned (on prest) and the Anderson entry (on forms of civil action) are evidently misfiled or mismatched returns and contain no relevant material on this term.

Researchers should not rely on the Law Mind shelf sources for this term's primary definition. The authoritative historical treatments appear in Blackstone's Commentaries (Book IV, Chapter 25), where the practice is described in detail, and in Stephen's History of the Criminal Law of England. Blackstone notes the practice with evident disapproval, calling it "barbarous" while explaining its procedural logic. These sources, external to the immediate Law Mind corpus, are essential for any substantive research on this term.

The gap in the historical dictionaries here is itself instructive: by the time the major American legal dictionaries were being compiled in the latter 19th century, the practice had been abolished for nearly a century, and it likely fell below the threshold of practical relevance for American practitioners — explaining its absence or misidentification in the corpus.

Jurisdictional Note

Peine forte et dure was a feature of English common law and was formally abolished in England in 1772. It had limited documented application in American colonial practice. No American jurisdiction retained or revived the practice after independence, and it has no modern legal application anywhere in common law systems.

FORTE ET DUREmain

Anderson's Dictionary of Law • 1890

dictions are or have also been included, injunction, mandamus, scire facias. In Kansas there is but one form of action, called a civil action. The plaintiff, for cause of action, states the actual facts, without common-law forms or fictions.1 In Pennsylvania, by an act approved May 25, 1887 (P. L. 271), the forms of action are assumpsit, to which the plea of the general issue is "non assumpsit," with the privilege of pleading payment, set off, and the statute of limitation; and trespass, in which the only plea is "not guilty." Where the common law forms have been abolished, the principles governing them at common law are frequently invoked. Where the formal distinctions between actions are abolished, the declaration states the facts which constitute the cause of action. When the facts are plainly and distinctly stated, the action will be regarded as either in tort or in contract; having regard, first, to the character of the remedy such facts indicate; and, second, to the most complete and ample redress which, upon the facts stated, the law can afford.2 See ACTION, 2; CODE. Form of the statute. The provision or enactment, the prohibition or direction, of a statute. Against the form of the statute. A technical phrase used in an indictment for a statutory offense; the "conclusion against the statute." "Against the form of the statute in such case made and provided" is the usual expression, but any equivalent expression will be sufficient-any phrase which shows that the offense charged is founded on some statute.3 Formality. Established order or method, rule of proceeding or expression. Opposed, informality.+ Compare REFORM; UNIFORM. See MANNER; SUBSTANCE; TECHNICAL. See PEINE. 1 From fornix, q. v. 2 [Montana v. Whitcomb, 1 Monta. 362 (1871), Wade, Chief Justice. 3 Hood v. State, 56 Ind. 271 (1877), Perkins, C. J. See also 3 Monta. 54; 51 Wis. 461; 4 Bl. Com. 65. 4 Dinkey v. Commonwealth, 17 Pa. 129-30 (1851), Black, C. J. • Page v. Merwin, 54 Conn. 434 (1886). See Heard, Libel & Sl. §§ 16, 34; 1 Johns. 505; 2 id. 10; 13 id. 48, 80: 12 Mass. 496; 2 Har. & J. (Md.) 363. "United States v. Tichenor, 8 Saw. 153 (1882), Deady, J.; s. c. 12 F. R. 424.