Giles Corey: ‘More Weight’ Is Absent From Sewall and Calef

How did peine forte et dure work?

In England the penalty came after the end of the ordeal. Once the courts had turned to the jury that replaced the ordeal, it seems to have become the rule, wrote James Bradley Thayer at Harvard Law School in 1898, that “the accused could not be put on his trial by a jury without his consent” (Exhibit F, p. 73).

A statute of 1275, the Statute of Westminster the First, chapter 12, dealt with those who refused. In Thayer's translation, notorious felons who would not put themselves on inquests “shall be put in strong and hard imprisonment (en le prison forte et dure) as refusing the common law of the land.” Thayer added: “This appears to be the first mention of what came to be known as the peine forte et dure” (Exhibit F, p. 74).

William Blackstone's Commentaries on the Laws of England, read here in its 1775 edition, sets out three ways a prisoner could stand mute (Exhibit C, p. 324). He could make no answer at all, answer beside the point, or, “Upon having pleaded not guilty, refuses to put himself upon the country,” that is, refuse a jury. If he said nothing, a jury first decided whether he was silent by choice or unable to speak.

What followed a refusal to plead in English law, as Blackstone set it out in 1775, with the changes of 1772 and 1827 from Thayer. The thick line is the route Calef describes for Corey. Drawn from the table published with this page.

The routes from arraignment, one row per step with its source (CSV) (where the data comes from) Data: William Blackstone, Commentaries on the Laws of England, vol. 4 (Oxford, 1775); James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston, 1898); Robert Calef, More Wonders of the Invisible World (1700), in S. G. Drake, ed., vol. 3 (Roxbury, 1866)

For high treason, petty larceny and misdemeanours, a prisoner mute by choice was treated as convicted. For other felonies, the old law did not count him as convicted, so it applied the penance instead (Exhibit C, p. 325). Blackstone believed the weights were a later addition; the early form, as he read it, was hard confinement with almost no food (Exhibit C, p. 328).

Blackstone separated the penalty from torture: the rack sought a confession, while this penalty was used “to compel a man to put himself upon his trial” (Exhibit C, p. 326). He also wrote that “it rarely was carried into practice” (Exhibit C, p. 328).

The penalty ended by statute: in 1772, Parliament made standing mute on a charge of felony or piracy count as a conviction, and from 1827 a court could enter a plea of not guilty for a silent prisoner (Exhibit F, pp. 74, 77–78). Corey's case came eighty years before the first of those changes.

What do Sewall and Calef say about Giles Corey?

Among the writers of the time, two read here recorded his death. Samuel Sewall, one of the Salem judges, wrote in his diary for Monday, September 19, 1692: “About noon, at Salem, Giles Corey was press'd to death for standing Mute” (Exhibit A, p. 364). He added that “much pains was used with him two days, one after another,” by the court and by an acquaintance, Captain Gardner of Nantucket, without success.

Robert Calef, a Boston merchant and critic of the trials, gave a fuller account in a book printed in London in 1700 (Exhibit B, vol. 3, pp. 44–45). Corey, he wrote, “pleaded not Guilty to his Indictment, but would not put himself upon Tryal by the Jury (they having cleared none upon Tryal).” Calef adds one physical detail of Corey's last moments, involving the sheriff, and records no words from Corey. He calls him “the first in New-England that was ever prest to Death.”

The title page of Calef's More Wonders of the Invisible World (London, 1700). His note on Corey is in the book's fifth part, an account of the events of 1692.

Read against Blackstone, the two accounts fit together. Calef describes a man who pleaded not guilty and then refused a jury, the third way of standing mute, and Sewall uses the legal term for it. The court's own papers say less: the historian Charles Upham found only “a few brief depositions” on file for Corey, and wrote in 1867 that “No information has come to us of the details of the proceedings” (Exhibit E, vol. 2, pp. 334, 338).

Each witness had a position: Sewall was one of the judges trying the accused, and Calef was a critic of the trials. Neither gives Corey any last words.

Did Giles Corey die on September 16 or September 19?

The two accounts disagree on the day: Calef's list of events reads “September 16, Giles Cory was prest to Death” (Exhibit B, vol. 3, pp. 44–45). Sewall's entry is headed September 19. Both use the Julian calendar of the time.

The calendar below gives the weekdays. September 19, 1692, in that calendar fell on a Monday, the day Sewall names, and September 16 on a Friday. Later writers split along the same line. Upham wrote that Corey died “Three days before” the hanging of September 22, which is Sewall's date (Exhibit E, vol. 2, p. 334), while the ballad discussed below says that Corey's wife Martha “lived but six Dayes more,” which is Calef's.

September 1692 in the Julian calendar used at the time, with the events dated in Calef, Sewall and the Salem church record. The weekdays are calculated, two ways, from the dates.

September 1692, one row per dated event with its weekday and source (CSV) (where the data comes from) Data: Robert Calef, More Wonders of the Invisible World (1700), in S. G. Drake, ed., vol. 3 (Roxbury, 1866); Diary of Samuel Sewall, vol. 1 (Boston, 1878); Charles W. Upham, Salem Witchcraft, vol. 2 (Boston, 1867)

The First Church of Salem added one more date. Its record of March 1712, which Upham printed, says that on September 18, 1692, the church voted to excommunicate Corey because he had “obstinately refused to plead, and so threw himself on certain death” (Exhibit E, vol. 2, p. 483). It does not say whether he was still alive.

Like the Salem witch trials page, this page uses Sewall's date, from a diary entry headed with the day and weekday, and gives Calef's beside it. Martha Corey was among eight people hanged on September 22 (Exhibit B, vol. 3, pp. 44–45), at a site retried on the page on where Salem's hangings took place.

Why did Giles Corey refuse a jury?

Calef gives one reason. Corey, “knowing there would be the same Witnesses against him, rather chose to undergo what Death they would put him to” (Exhibit B, vol. 3, pp. 44–45). That is Calef's reading of a man he does not quote.

Upham gave another. He printed a deed Corey had made in Ipswich jail, handing all his property to two sons-in-law, and argued that Corey refused trial so that no conviction could undo it (Exhibit E, vol. 2, pp. 336–337). The editors of Sewall's diary repeated this in 1878, writing that Corey “resolutely preserved silence” to keep his estate from being confiscated (Exhibit A, p. 364, note).

Howard Pyle's 1892 painting for Mary E. Wilkins's play Giles Corey, Yeoman, printed in its 1893 book edition beside the accuser's line “There is a flock of yellow birds around her head.” An imagined courtroom from a play, not a record.

English law gives Upham's reading some footing. Blackstone wrote that a prisoner who stood mute and suffered the penance avoided judgment, so his lands did not escheat, though his goods were still forfeited (Exhibit C, p. 329). Whether a Massachusetts court in 1692 would have treated Corey's estate that way is not shown in the sources read here.

This is where the method stops, because peine forte et dure records that a prisoner refused a jury, not why he refused it. For Corey, Sewall and Calef give no words of his own on the question.

Where does “More weight” come from?

The earliest dated printing found here is in the appendix to Samuel G. Drake's 1866 edition of Calef. Drake reprinted a ballad he had “cut from a Newspaper sixteen years ago,” introduced there as coming from the Salem Observer (Exhibit B, vol. 3, p. 174). Its title, “A Ballad of 1692,” gives the year of the events, not of the writing, and Drake called it a ballad “in the Chevy Chase Style,” spelled to look old. Drake thought only one writer could have produced it and pointed to the poems of Mr. Whittier, which he had not checked.

In the ballad, a magistrate tells the silent Corey “We'll press it out of thee,” and then: “‘More weight,’ now sayd this wretched Man” (Exhibit B, vol. 3, pp. 174–177). The same poem has Corey stay silent before the court, “he sayde not a Word,” where Calef has him plead not guilty.

Illustration

An illustration of an imagined scene, not a record: a prisoner standing silent before a colonial court. The 1692 accounts read for this page give Giles Corey no last words; the words came later, in verse.

Upham's history of 1867 is the second printing found. Upham wrote that “It is said that Corey urged the executioners to increase the weight,” and that some people then living remembered a “popular superstition” that Corey's ghost haunted the spot, and a ditty that boys sang there, beginning “‘More weight! more weight!’ Giles Corey he cried” (Exhibit E, vol. 2, pp. 339–340). He reported the words as tradition, not as testimony from 1692. A later retelling, Mary E. Wilkins's 1893 play Giles Corey, Yeoman, does not use them at all in the text read here (Exhibit D).

One later record points the other way. The 1712 church record says the church had “testimony in his behalf” that before his death “he did bitterly repent of his obstinate refusal to plead” (Exhibit E, vol. 2, pp. 483–484). Upham called that statement “a misrepresentation,” and the record names no witness.

The site uses the term courtroom folklore for popular versions of a famous trial that contradict the surviving record and still outlive it. “More weight” is a boundary case. No 1692 account read here contains the words, and none records what Corey said while he was pressed; the church's later claim that he repented concerns his refusal to plead, not his words. Silence in the record is a gap, not a contradiction.