CHAPTER THE TWENTY FIFTH.
OF ARRAIGNMENT, AND IT'S INCIDENTS.

WHEN the offender either appears voluntarily to an indictment, or was before in cuftody, or is brought in upon criminal procefs to anfwer it in the proper court, he is immediately to be arraigned thereon ; which is the fifth ftage of criminal profecution.

TO arraign, is nothing elfe but to call the prifoner to the bar of the court, to anfwer the matter charged upon him in the indictment ^a. The prifoner 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 higheft nature, he muft be brought to the bar without irons, or any manner of fhackles or bonds ; unlefs there be evident danger of an efcape, and then he may be fecured with irons. But yet in Layer's cafe, A. D. 1722. a difference was taken between the time of arraignment, and the time of trial ; and accordingly the prifoner ftood at the bar in chains during the time of his arraignment ^c.

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^a 2 Hal. P. C. 216.
^b Bract. L. 3. de coron. C. 18. §. 3. Mirr. c. 5. fect. 1. § 54. Flet. l. 1. c. 31. §. 1. Britt. c. 5. Staundt. P. C. 78. 3 Inft. 34. Kel. 10. 2 Hal. P. C. 219 2 Hawk. P. C. 308.
^c State Trials. VI. 230.
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WHEN he is brought to the bar, he is called upon by name to hold up his hand : which, though it may feem a trifling circumftance, yet is of this importance, that by the holding up of his hand conftat de perfona, and he owns himfelf to be of that name by which he is called ^d. However it is not an indifpenfable ceremony ; for, being calculated merely for the purpofe of identifying the perfon, any other acknowlegement will anfwer the purpofe as well : therefore, if the prifoner obftinately and contemptuoufly refufes to hold up his hand, but confeffes he is the perfon named, it is fully fufficient ^e.

THEN the indictment is to be read to him diftinctly in the Englifh tongue (which was law, even while all other proceedings were in Latin) that he may fully underftand his charge. After which it is to be demanded of him, whether he be guilty of the crime, whereof he ftands indicted, or not guilty. By the old common law the acceffory could not be arraigned till the principal was attainted ; and therefore, if the principal had never been indicted at all, had ftood mute, had challenged above thirty five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the acceffory in any of thefe cafes could not be arraigned: for non conflitit whether any felony was committed or no, till the principal was attained; and it might fo happed that the acceffory fhould be convicted one day, and the principal acquitted the next, which would be abfurd. However, this abfurdity could only happen, where it was poffible, that a trial of the principal might be had, fubfequent to that of the acceffory: and therefore the law ftill continues, that the acceffory fhall not be tried, fo long as the principal remains liable to be tried hereafter. But by ftatute 1 Ann. 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 otherwife; or if the principal ftands mute, or challengers peremptorily

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^d 2 Hal. P. C. 219.
^e Raym. 408.
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above the legal number of jurors, fo as never to be convicted at all ; in any of thefe cafes, in which no fubfequent trial can be had of the principal, the acceffory may be proceeded againft, as if the principal felon had been attainted ; for there is no danger of future contradiction. And upon the trial of the acceffory, as well after as before the conviction of the principal, it feems to be the better opinion, and founded on the true fpirit of juftice ^f, that the acceffory is at liberty (if he can) to controvert the guilt of his fuppofed 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 ftands mute, or confeffes the fact ; which circumftances we may call incidents to the arraignment : or elfe he pleads to the indictment, which is to be confidered as the next ftage of proceedings. But, firft, let us obferve thefe incidents to the arraignment, of ftanding mute,

I. REGULARLY a prifoner is faid to ftand mute, when, being arraigned for treafon or felony, he either, 1. Makes no anfwer at all : or, 2. Anfwers foreign to the purpofe, or with fuch matter as is not allowable ; and will not anfwer otherwife : or, 3 Upon having pleaded not guilty, refufes to put himfelf upon the country ^g. If he fays nothing, the court ought ex officio to impanel a jury, to enquire whether he ftands obftinately mute, or whether he be dumb ex vifitatione Dei. If the latter appears to be the café, the judges of the court (who are to be of counfel for the prifoner, and to fee that he hath law and juftice) fhall proceed to the trial, and examine all points as if he had pleaded not guilty ^h. But whether judgment of death can be given againft fuch a prifoner, who hath never pleaded, and can fay nothing in arreft of judgment, is a point yet undetermined ^i.

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^f Fofter. 365, & c.
^g 2 Hal. P. C. 316.
^h 2 Hawk. P. C. 327.
^I 2 Hal. P. C. 317.
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IF he be found to be obftinately mute, (which a prifoner hath been held to be, that hath cut out his own tongue ^k,) then, if it be on an indictment of high treafon, it is clearly fettled that ftanding mute is equivalent to a conviction, and he fhall receive the fame judgment and execution ^l. And as in this the higheft crime, fo alfo in the loweft fpecies of felony, viz. in petit larciny, and in all mifdemefnors, ftanding mute is equivalent to conviction. But upon appeals or indictments for other felonies, or petit treafon, he fhall not be looked upon as convicted, fo as to receive judgment for the felony ; but fhall, for his obftinacy, receive the terrible fentence of penance, or peine forte et dure.

BEFORE this is pronounced the prifoner ought to have not only trina admonitio, but alfo a convenient refpite of a few hours, and the fentence fhould be diftinctly read to him, that he may know his danger ^m : and, after all, if he continues obftinate, and his offence is clergyable, he fhall have the benefit of his clergy allowed him ; even though he is too ftubborn to pray it ⁿ. Thus tender has the modern law been of inflicting this dreadful punifhment : but if no other means will prevail, and the prifoner (when charged with a capital felony) continues ftubbornly mute, the judgment is then given againft him, without any diftinction of fex or degree. A judgment, which the law has purpofely ordained to be exquifitely fevere, that by that very means it might rarely be put in execution.

THE rack, or queftion, to extort a confeffion from criminals, is a practice of a different nature : this being only ufed to compel a man to put himfelf upon his trial ; that being a fpecies of trial in itfelf. And the trial by rack is utterly unknown to the law of England ; though once when the dukes of Exeter and Suffolk, and other minifters of Henry VI, had laid a defign to introduce the civil law into this kingdom as the rule of govern-

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^k 3 Inft. 178.
^l 2 Hawk. P. C. 329. 2 Hal. P. C. 317.
^m 2 Hal. P. C. 320.
ⁿ 2 Hal. P. C. 321. 2 Hawk. P. C. 332.
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ment, for a beginning thereof they erected a rack for torture ; which was called in derifion the duke of Exeter's daughter, and ftill remains in the tower of London ^o : where it was occafionally ufed as an engine of ftate, not of law, more than once in the reign of queen Elizabeth ^p. but when, upon the affaffination of Villiers duke of Buckingham by Felton, it was propofed in the privy council to put the affaffin to the rack, in order to difcover his accomplices ; the judges, being confulted, declared unanimoufly, to their own honour and the honour of the Englifh law, that no fuch proceeding was allowable by the laws of England ^q. It feems aftonifhing that this ufage, of adminiftring the torture, fhould be faid to arife from a tendernefs to the lives of men : and yet this is the reafon given for it's introduction in the civil law, and it's fubfequent adoption by the French and other foreign nation ^r : viz. becaufe the laws cannot endure that any man fhould die upon the evidence of a falfe, or even a fingle, witnefs ; and therefore contrived this method that innocence fhould manifeft itfelf by a ftout denial, or guilt by a plain confeffion. Thus rating a man's virtue by the hardinefs of his conftitution, and his guilt by the fenfibility of his nerves ! But there needs only to ftate accurately ^s, in order moft effectually to expofe, this inhuman fpecies of mercy : the uncertainty of which , as a teft and criterion of truth, was long ago very elegantly pointed out by Tully ; though he lived in a ftate wherein it was ufual to torture flaves in order to furnifh evidence : “ tamen, fays he, illa tormenta gubernat dolor, moderatur natura cujufque tum animi tum corporis, regit quaefitor, flectit libido, corrumpit fpes, infirmat metus ; ut in tot rerum anguftiis nihil veritati loci relinquatur ^t.”

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^o 3 Inft. 35.
^p Barr. 69. 385.
^q Rufhw. Coll. i. 638.
^r Cod. l. 9. t. 41. l. 8. & t. 47. l. 16. Fortefc. de LL. Angl. c. 22.
^s The marquis Beccaria, (ch. 16.) in an exquifite piece of raillery, has propofed this problem. with a gravity and precifion that are truly mathematical : “ the force of the mufcles and the fenfibility of the nerves of an innocent perfon being given, it is required to find the degree of pain, neceffary to make him confefs himfelf guilty of a given crime.”
^t Pro Sulla. 28.
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THE Englifh judgment of penance for ftanding mute ^v is as follows : that the prifoner fhall be remanded to the prifon from whence he come ; and put into a low, dark chamber ; and there be laid on his back, on the bare floor, naked, unlefs where decency forbids ; that there be placed upon his body as great a weight of iron as he can bear, and more ; that he fhall have no fuftenance, fave only, on the firft day, three morfels of the worft bread ; and, on the fecond day, three draughts of ftanding water, that fhall be neareft to the prifon door ; and in this fituation this fhall be alternately his daily diet, till he dies, as the judgment now runs, though formerly it was, till he anfwered ^u.

IT hath been doubted whether this punifhment fubfifted at the common law ^w, or was introduced in confequence of the ftatute Weftm. 1. 3 Edw. I. c. 12. ^x which feems to be the better opinion. For not a word of it is mentioned in Glanvil or Bracton, or in any antient author, cafe, or record, (that hath yet been produced) previous to the reign of Edward I : but there are inftances on record in the reign of Edward I : but there are inftances on record in the reign of Henry III ^y, where perfons accufed of felony, and ftanding mute, were tried in a particular manner, by two fucceffive juries, and convicted ; and it is afferted by the judges in 8 Hen. IV. that, by the common law before the ftatute, ftanding mute on an appeal amounted to a conviction of the felony ^z. This ftatute of Edward I directs fuch perfons, “ as will not put themfelves upon inquefts of felonies before the judges at the fuit of the king, to be put into hard and ftrong prifon (foient mys en la prifone fort et dure) as thofe which refufe to be at the common law of the land.” And, immediately after this ftatute, the form of the judgment appears in Fleta and Britton to have been only a very ftrait con-

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^v 2 Hal. P. C. 319. 2 Hawk. P. C. 329.
^u Britton. c. 4. & 22. Flet. l. 1. c. 34. §. 33.
^w 2 Inft. 179. 2 Hal. P. C. 322. 2 Hawk. P. C. 330.
^x Staundf. P. C. 149. Barr. 65.
^y Emlyn on 2 Hal. P. C. 322.
^z Al common ley, avant le ftatute de Weft. 1. c. 12. fi afcxn uft eftre appeal, et uft eftre mute, il ferra convict de felony. (M. 8 Hen. IV. 2.)
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finement in prifon, with hardly any degree of fuftenance ; but no weight is directed to be laid upon the body, fo as to haften the death of the miferable fufferer : and indeed any furcharge of punifhment on perfons adjudged to penance, fo as to fhorten their lives, is reckoned by Horne in the mirror ^a as a fpecies of criminal homicide : to which we may add, that the record of 35 Edw. I. (cited by a learned author ^b) moft clearly proves, that the prifoner might then poffibly fubfift for forty days under this lingering punifhment. I fhould therefore imagine that the practice of loading him with weights, or, as it is ufually called, preffing him to death, was gradually introduced between the reign of Edward I and 8 Hen. IV, when it firft appears upon our books ^c ; and was intended as a fpecies of mercy to the delinquent, by delivering him the fooner from his torment : and hence I prefume it alfo was, that the duration of the penance was then firft ^d altered ; and inftead of continuing till he anfwered, it was directed to continue till he died, which muft very foon happen under an enormous preffure.

THE uncertainty of it's original, the doubts that may be conceived of it's legality, and the repugnance of it's theory (for it rarely is carried into practice ) to the humanity of the laws of England, all feem to require a legiflative abolition of this cruel procefs, and a reftitution of the antient common law ; whereby the ftanding mute in felony, as well as in treafon and in trefpafs, amounted to a confeffion of the charge. Or, if the corruption of the blood and the confequent efcheat in felony were removed, the peine forte et dure might ftill remain, as a monument of the favage rapacity, with which the lordly tyrants of feodal antiquity hunted after efcheats and forfeitures ; but no man would ever be tempted to undergo fuch a horrid alternative. For the law is, that by ftanding mute, and fuffering this heavy penance, the judgment, and of courfe the corruption of the blood and efcheat of the lands, are faved in felony and petit treafon ;

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ch. 1. §. 9.
Barr. 62.
^b Yearb. 8 Hen. IV. 1.
^c Et fuit dit, que le contrarie avoit etire fait devant ces heures. (Ibid. 2)
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though not the forfeiture of the goods: and therefore this lingering punifhment was probably introduced, in order to extort a plea; without which it was held that no judgment of death could being given, and fo the lord loft his efcheat. But notwithftanding thefe terrors, fome hardy delinquents, confcious of their guilt, and yet touched with a tender regard for their children, have rather chofen to fubmit to this painful death, than the eafier judgment upon conviction, which might expofe their offspring not only to prefent want, but to future incapacities of inheritance. But in high treafon, as ftanding mute is equivalent to a conviction, the fame judgment, the fame corruption of blood, and the fame forfeitures attend it, as in other cafes of conviction ^e. And thus much for the demefnor of a prifoner upon his arraignment, by ftanding mate.

II. THE other incident to arraignments, exclufive of the plea, is the prifoner's confeffion of the indictment. Upon a fimple and plain confeffion, the court hath nothing to do but to award judgment: but it is ufually very backward in receiving and recording fuch confeffion, out of tendernefs to the life of the fubject; and will generally advife the prifoner to retract it, and plead to the indictment^f.

BUT there is another fpecies of confeffion, which we read much of in our antient books, of a far more complicated kind, which is called approvement. And that is when a perfon, indicted of treafon or felony, and arraigned for the fame, doth confefs the fact before plea pleaded; and appeals or accufes others, his accomplices, of the fame crime, in order to obtain his pardon. In this cafe he is called an approver or prover, probator, and the party appealed or accufed is called the appellee. Such approvement can only be in capital offences; and it is, as it were, equivalent to an indictment, fince the appellee is equally called upon to anfwer it : and if he hath no reafonable and legal exceptions to make to the perfon of the approver, which indeed

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^e 2 Hawk. P. C. 331.
^f 2 Hal. P. C. 225.
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are very numerous, he muft put himfelf upon his trial, either by battle, or by the country; and, if vanquifhed or found guilty, muft fuffer the judgment of the law, and the approver fhall have his pardon, ex debito juftitiae. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver fhall receive judgment to be hanged, upon his own confeffion of the indictment; for the condition of his pardon has failed, viz. the convicting of fome other perfon, and therefore his conviction remains abfolute.

BUT it is purely in the difcretion of the court to permit the approver thus to appeal, or not; and, in fact, this courfe of admitting approvements hath been long difufed: for the truth was, as fir Matthew Hale obferves, that more mifchief hath arifen to good men by thefe king of approvements, upon falfe and malicious accufations of defperate villains, than benefit to the public by the difcovery and conviction of real offenders. And therefore, in the times when fuch appeals were more frequently admitted, great ftrictnefs and nicety were held therein ^g: though, fince their difcontinuance, the doctrine of approvements is become a matter of more curiofity than ufe. I fhall only obferve, that all the good, whatever it be, that can be expected from this method of approvement, is fully provided for in the cafes of robbery, burglary, houfebreaking, and larciny to the value of five fhillings from fhops, warehoufes, ftables, and coachhoufes, by ftatutes 4 & 5 W. M. c. 8. 10 & 11 W. III. c. 23. and 5 Ann. c. 31. which enact, that, if any fuch felon, being out of prifon, fhall difcover two or more perfons, who have committed the like felonies, fo as they may be convicted thereof; he fhall in moft cafes receive a reward of 40 l, and in general be entitled a pardon of all capital offences, excepting only murder and treafon. And if any fuch perfon, having felonioufly ftolen any lead, iron, or other metals, fhall difcover and convict two offenders of having illegally bought or received the fame he fhall by virtue of ftatute 29 Geo. II. c. 30 be pardoned for all fuch felonies committed before fuch difcovery.

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^f 2 Hal. P. C. ch. 29. 2 Hawk. P. C. ch. 24.
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