At this stage of prosecution also it is that indictments found by the grand jury against a peer must, in consequence of a writ of certiorari, be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain; and that, in places of exclusive jurisdiction, as the two universities, indictments must be delivered (upon challenge and claim of cognizance) to the courts therein established by charter and confirmed by act of parliament, to be there respectively tried and determined.

CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

*322] *WHEN the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned thereon: which is the fifth stage of criminal prosecution.

To arraign1 is nothing else but to call the prisoner to the bar of the court. to answer the matter charged upon him in the indictment. (a) The prisoner is to be called to the bar by his name; and it is laid down in our antient books(b) that, though under an indictment of the highest nature, he must be brought to the bar without irons or any manner of shackles or bonds, unless there be evident danger of an escape, and then he may be secured with irons. But yet, in Layer's case, A.D. 1722, a difference was taken between the time of arraignment and the time of trial; and accordingly the prisoner stood at the bar in chains during the time of his arraignment.(c)

up

*323] *When he is brought to the bar, he is called upon by name to hold his hand; which, though it may seem a trifling circumstance, yet is of this importance, that by the holding up of his hand constat de persona, and he owns himself to be of that name by which he is called.(d) However, it is not an indispensable ceremony; for, being calculated merely for the purpose of identifying the person, any other acknowledgment will answer the purpose as well therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient.(e)

Then the indictment is to be read to him distinctly in the English tongue, (which was law even while all other proceedings were in Latin,) that he may fully understand his charge. After which it is to be demanded of him whether he be guilty of the crime whereof he stands indicted, or not guilty. By the old common law the accessory could not be arraigned till the principal was attainted, unless he chose it: for he might waive the benefit of the law; and therefore principal and accessory might, and may still, be arraigned, and plead, and also be tried, together. But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessory in any of these cases could not be arraigned; for non

(a) 2 Hal. P. C. 216.

(Bract. 1. 3, de coron. c. 18, 23. Mirr. c. 5, sect. 1, ? 54. rlet. l. 1, c. 31, 1. Britt. c. 5. Staundf. P. C. 78. 3 Inst. 84. Kel. 10. 2 Hal. P. C. 219. 2 Hawk. P. C. 308.

State Trials, vi. 230.
(d) 2 Hal. P. C. 219.
() Raym. 408.

he must enter into a recognizance to pay costs if convicted; and so, on the other hand, it the indictment be removed at the instance of the prosecutor, he must enter into a recognizance to pay costs in the event of the defendant being acquitted.-STEWART.

This word in Latin (lord Hale says) is no other than ad rationem ponere, and in French,

ud reson, or, abbreviated, id resn. 2 Hal. P. C. 216.-CHRISTIAN.

And it has since been held that the court has no authority to order the irons to be taken off till the prisoner has pleaded and the jury are charged to try him. Waite's case, Leach, 34.-CHRISTIAN.

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constitit whether any felony was committed or no, till the principal was attainted; and it might so happen that the accessory should be convicted one day and the principal acquitted the next, which would be absurd. However, this absurdity could only happen where it was possible that a trial of the principal might be had subsequent to that of the accessory; and therefore the law still continues that the accessory shall not be tried so long as the principal remains liable to be tried hereafter. But, by statute *1 Anne, c. 9, if the principal be once convicted, and before attainder (that is, before he receives judgment of death or outlawry) he is delivered by pardon, the benefit of clergy, or otherwise; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases in which no subsequent trial can be had of the principal, the accessory may be proceeded against as if the principal felon had been attainted; for there is no danger of future contradiction. And upon the trial of the accessory, as well after as before the conviction of the principal, it seems to be the better opinion, and founded on the true spirit of justice,(f) that the accessory is at liberty (if he can) to controvert the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact as in point of law.* When a criminal is arraigned, he either stands mute, or confesses the fact; which circumstances we may call incidents to the arraignment; or else he pleads to the indictment, which is to be considered as the next stage of proceedings. But, first, let us observe these incidents to the arraignment,-—of standing mute, or confession.

I. Regularly, a prisoner is said to stand mute when, being arraigned for treason or felony, he either, 1. Makes no answer at all; or, 2. Answers foreign to the purpose, or with such matter as is not allowable; and will not answer otherwise; or, 3. Upon having pleaded not guilty refuses to put himself upor the country.(g) If he says nothing, the court ought, ex officio, to impanel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei. If the latter appears to be the case, the judges of the court (who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty.(h) But whether judgment of death can be given against such a

(5) Fost. 365, &c.

(@) 2 Hal. P. C. 316.

(A) 2 Hawk. P. C. 327.

And now, by the 11 & 12 Vict. c. 45, s. 1, an accessory before the fact to any felony may be indicted, tried, convicted, and punished in all respects as if he were a principal elon; and an accessory after the fact to any felony may be indicted and convicted either Ls an accessory after the fact to the principal felony with the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted or shall or shall not be amenable to justice.-STEWART.

* See the 7 Geo. IV. c. 64, by sect. 9 of which accessories before the fact, whether in cases of felony at common law, or by virtue of any statute or statutes made or to be made, may be tried as such, or as for substantive felonies, by any court having jurisdiction to try the principal felons, although the offences be committed on the seas or abroad, and, if the offences be committed in different counties, may be tried in either.

By sect. 10, accessories after the fact may be tried by any court having jurisdiction over the principal felons, as in the preceding section; and, by sect. 11, in order that all accessories may be convicted and punished in cases where the principal felon is no attainted, it is enacted that accessories may be prosecuted after the conviction of the principal felon, though the principal felon be not attainted. See further, as to arraignment, 1 Curw. Hawk. P. C. 434. 1 Chitt. C. L. 414. The statute mentioned in the text is repealed by the statute 7 Geo. IV. c. 64.—CHITTY.

"By 7 & 8 Geo. IV. c. 28, s. 1, where the prisoner pleads "Not guilty," without more, he shall be put on his trial by jury; and, by sect. 2, if he refuses to plead, the court may order a plea of "Not guilty" to be entered, and proceed as in other cases. But the latter is discretionary; and where there is any real doubt whether the refusal to plead arises from obstinacy or inability, the court may, and will, impanel a jury to try that question. In cases of insanity this is specially provided for by the unrepealed statute of 39 & 40 Geo. III. c. 94, sect. 1 of which enacts that the jury, in case of any persou charged with treason, &c., proving up m the trial to be insane, shall declare whether he

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*prisoner who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined.(i)

If he be found to be obstinately mute, (which a prisoner hath been held to be that hath cut out his own tongue,)(k) then, if it be on an indictment of high treason, it hath long been clearly settled that standing mute is an equivalent to a conviction, and he shall receive the same judgment and execution.(1) And us in this the highest crime, so also in the lowest species of felony, viz., in petit larceny, and in all misdemeanours, standing mute hath always been equivalent to conviction. But upon appeals But upon appeals or indictments for other felonies, or petit treason, the prisoner was not, by the antient law, looked upon as conricted so as to receive judgment for the felony; but should for his obstinacy have received the terrible sentence of penance, or peine (which, as will appear presently, was probably nothing more than a corrupted abbreviation of prisone) forte et dure.

Before this was pronounced, the prisoner had not only trina admonitio, but also a respite of a few hours, and the sentence was distinctly read to him, that he might know his danger;(m) and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it.(n) Thus tender was the law of inflicting this dreadful punishment; but if no other means could prevail, and the prisoner (when charged with a capital felony) continued stubbornly mute, the judgment, was then given against him, without any distinction of sex or degree. A judg ment which was purposely ordained to be exquisitely severe, that by that very means it might rarely be put in execution."

The rack, or question, to extort a confession from criminals, is a practice of a different nature; this having been only *used to compel a man to put *326] himself upon his trial; that being a species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once, when tho dukes of Exeter and Suffolk, and other ministers of Henry IÏV., had laid a design to introduce the civil law in this kingdom as the rule of government, for a

2 Hal. P. C. 317.

3 Inst. 178.

() 1 Hawk. P. C. 329. 1 Hal. P. C. 317.

2 Hal. P. C. 320.

(") Ibid. 321. 2 Hawk. P. C. 332.

was acquitted by them on account of insanity, and the court shall order him to be kept in custody till his majesty's pleasure be known, and his majesty may give an order for the safe custody of such insane person; and sect. 2 enacts that insane persons indicted for any offence, and found to be insane by a jury, to be impanelled on their arraignment, shall be ordered by the court to be kept in custody till his majesty's pleasure be known. The latter section has been held to extend to cases of misdemeanour. Rex vs. Little, R. & R. C. C. 430. In Rex vs. Roberts, Car. C. L. 57, a prisoner would not plead; and, a jury being impanelled to try whether he stood mute by the visitation of God, his counsel claimed a right to address the jury, as this was an issue with the affirmative on the prisoner. This was allowed by Park and Abbott, Js. The prisoner's counsel addressed the jury, and called witnesses to prove he was insane. The jury found that he was so, and Park, J., directed that he should be detained until his majesty's pleasure should be known.-CHITTY.

Aulus Gellius with more truth has made the same observation upon the cruel law of the Twelve Tables, De inope debitore secando, "Eo consilio tanta immanitas pœnæ denunciata est, ne ad eam unquam perveniretur;" for he adds, "dissectum esse antiquitus neminem equidem neque legi neque audim." Lib. 20, c. 1. But with respect to the horrid judgment of the peine forte et dure, the prosecutor and the court could exercise no discretion or show no favour to a prisoner who stood obstinately mute. And in the legal history of this country there are numerous instances of persons who have had resolution and patience to undergo so terrible a death in order to benefit their heirs by preventing a forfeiture of their estates, which would have been the consequence of a conviction by a verdict. There is a memo rable story of an ancestor of an ancient family in the north of England. In a fit of jealousy he killed his wife, and put to death his children who were at home by throwing them from the battlements of his castle; and proceeding with an intent to destroy his only remaining child, an infant nursed at a farm-house at some distance, he was intercepted by a storm of thunder and lightning. This awakened in his breast the compunc tions of conscience. He desisted from his purpose, and having surrendered himself to justice, in order to secure his estates to this child, he had the resolution to die under the dreadful judgment of peine forte et dure.-CHRISTIAN.

beginning thereof they erected a rack for torture, which was called in derision the Duke of Exeter's daughter, and still remains in the Tower of London ;(~) where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth.(p) But when, upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack in order to discover his accomplices, the judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England. (q) It seems astonishing that this usage of administering the torture should be said to arise from a tenderness to the lives of men; and yet this is the reason given for its introduction in the civil law, and its subsequent adoption by the French and other foreign nations ;(r) viz., because the laws cannot endure that any man should die upon the evidence of a false, or even a single, witness, and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man's virtue by the hardi. ness of his constitution, and his guilt by the sensibility of his nerves! But there needs only to state accurately, (s) in order most effectually to expose this inhuman species of mercy, the uncertainty of which, as a test and criterion of truth, was long ago very elegantly pointed out by Tully, though he lived in a state wherein it was *usual to torture slaves in order to furnish evi[*327 dence: "tamen," says he, "illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quæsitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur.”(t)

The English judgment of penance for standing(u) mute was as follows: that the prisoner be remanded to the prison from whence he came, and put into a low, dark chamber, and there be laid on his back on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prisondoor; and in this situation this should be alternately his daily diet till he died, or (as antiently the judgment ran) till he answered.(v)

It hath been doubted whether this punishment subsisted at the common law, (w) or was introduced in consequence of the statute Westm. 1, 3 Edw. I. c. 12,(x) which seems to be the better opinion. For not a word of it is mentioned in Glanvil or Bracton, or in any antient author, case, or record (that hath yet been produced) previous to the reign of Edward I.; but there are instances on record in the reign of Henry III.(y) where persons accused of felony, and standing mute, were tried in a particular manner, by two successive juries, and convicted; and it is asserted by the judges in 8 Henry IV. that, by the common law before the statute, standing mute on an appeal amounted to a conviction of the felony.(z) This statute of Edward I. directs such persons [*328 * as will not put themselves upon inquests of felonies before the judges at the suit of the king, to be put into hard and strong prison (soient mys en la prisone forte et dure) as those which refuse to be at the common law of the land." And, immediately after this statute, the form of the judgment appears in Fleta and Britton to have been only a very strait confinement in prison, with hardly any degree of sustenance; but no weight is directed to be laid upon the body, o as to hasten the death of the miserable sufferer; and, indeed, any surcharge of punishment on persons adjudged to penance, so as to shorten their lives, is reckoned by Horne in the Mirror(a) as a species of criminal homicide.

(*) 3 Inst. 35.

(P) Barr. 92, 496.

(9) Rushw. Coll. i. 638.

(°C) Coll. l. 9, t. 41, l. 8, and t. 47, l. 16. Fortesq. de LL. Ang. c. 22.

(The marquis Beccaria, (ch. 16,) in an exquisite piece of raillery, has proposed this problem with a gravity and precision that are truly mathematical:-"The force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime."

It also clearly appears, by a record of 31 Edw. III.,(b) that the prisoner might then possibly subsist for forty days under this lingering punishment. I should therefore imagine that the practice of loading him with weights, or, as it was usually called, pressing him to death, was gradually introduced between 31 Edw. III. and 8 Hen. IV., at which last period it first appears upon our books; (c) being intended as a species of mercy to the delinquent, by delivering him the sooner from his torment: and hence I presume it also was that the duration of the penance was then first(d) altered; and, instead of continuing till he answered, it was directed to continue till he died, which must very soon happen under an enormous pressure.

The uncertainty of its original, the doubts that were conceived of its legality, and the repugnance of its theory (for it was rarely carried into practice) to the humanity of the laws of England, all concurred to require a legislative abolition of this cruel process, and a restitution of the antient common law; whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge. Or, if the corruption of the blood and the conse. quent escheat in felony had been removed, the judgment of peine forte et dure *329] might perhaps have still innocently remained, *as a monument of the savage rapacity with which the lordly tyrants of feodal antiquity hunted after escheats and forfeitures; since no one would ever have been tempted to undergo such a horrid alternative. For the law was, that by standing mute and suffering this heavy penance the judgment, and of course the corruption of the blood and escheat of the lands, were saved in felony and petit treason, though not the forfeiture of the goods: and therefore this lingering punishment was probably introduced, in order to extort a plea; without which it was held that no judgment of death could be given, and so the lord lost his escheat. But in high treason, as standing mute is equivalent to a conviction, the same judgment, the same corruption of blood, and the same forfeitures always attended it as in other cases of conviction. (e) And very lately, to the honour of our laws, it hath been enacted, by statute 12 Geo. III. c. 20, that every person who being arraigned for felony and piracy shall stand mute or not answer directly to the offence shall be convicted of the same, and the same judgment and execution (with all their consequences in every respect) shall be thereupon awarded as if the person had been convicted by verdict or confession of the crime. And thus much for the demeanour of a prisoner upon his arraignment by standing mute; which now, in all cases, amounts to a constructive confession.

II. The other incident to arraignments, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment.(f)

But there is another species of confession which we read much of in our antient books, of a far more complicated kind, which is called approvement. And that is when a *person indicted of treason or felony, and arraigned for the same, doth confess the fact before plea pleaded, and appeals or ac

*330]

(*) 6 Raym. 13.

Year-book, 8 Hen. IV. 1.

Et fuit dit, que le contraire avait estre fait devant ces keura. Ibid. 2.

2 Hawk. P. C. 331.
2 Hal. P. C. 225.

'Two instances have occurred since the passing of this statute of persons who refused to plead, and who in consequence were condemned and executed. One was at the Old Bailey, for murder, in 1777; the other was for burglary, at the summer assizes at Wells, in 1792. It might perhaps have been a greater improvement of the law if the prisoner's silence had been considered a plea of not guilty, rather than a confession; for it would operate more powerfully as an example, and be more satisfactory to the minds of the public, if the prisoner should suffer death after a public manifestation of his guilt by evidence, than that he should be ordered for execution only from the presumption which arises from his obstinate silence.-CHRISTIAN.