BOOK 4, CHAPTER 25 Of Arraignment, and its Incidents

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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 arraign, is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment.1 The prisoner is to be called to the bar by his name; and it is laid down in our ancient books,2 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.3

WHEN he is brought to the bar, he is called upon by name to hold up 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 [evidence of the person], and he owns himself to be of that name by which he is called.4 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.5

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; and therefore, if the principal had never been indicted at all, had 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 constitit [not evident] whether any felony was committed or no, till the principal was attained; 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 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 otherwise; or if the principal stands mute, or challengers 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,6 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,

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 upon the country.7 If he says nothing, the court ought ex officio [officially] to impanel a jury, to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei [by the visitation of God]. 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 has law and justice) shall proceed to the trial, and examine all points as if he had pleaded not guilty.8 But whether judgment of death can be given against such a prisoner, who has never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined.9

IF he be found to be obstinately mute, (which a prisoner has been held to be, that has cut out his own tongue,10) then, if it be on an indictment of high treason, it is clearly settled that standing mute is equivalent to a conviction, and he shall receive the same judgment and execution.11 And as in this the highest crime, so also in the lowest species of felony, viz. in petit larceny, and in all misdemeanors, standing mute is equivalent to conviction. But upon appeals or indictments for other felonies, or petit treason, he shall not be looked upon as convicted, so as to receive judgment for the felony; but shall, for his obstinacy, receive the terrible sentence of penance, or peine forte et dure [penance strong and hard].

BEFORE this is pronounced the prisoner ought to have not only trina admonitio [a third warning], but also a convenient respite of a few hours, and the sentence should be distinctly read to him, that he may know his danger:12 and, after all, if he continues obstinate, and his offense is clergyable, he shall have the benefit of his clergy allowed him; even though he is too stubborn to pray it.13 Thus tender has the modern law been of inflicting this dreadful punishment: but if no other means will prevail, and the prisoner (when charged with a capital felony) continues stubbornly mute, the judgment is then given against him, without any distinction of sex or degree. A judgment, which the law has 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 being only used to compel a man to put 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 the dukes of Exeter and Suffolk, and other ministers of Henry VI, had laid a design to introduce the civil law into this kingdom as the rule of government, for a 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:14 where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth.15 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 honor and the honor of the English law, that no such proceeding was allowable by the laws of England.16 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 nation:17 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 hardiness of his constitution, and his guilt by the sensibility of his nerves! But there needs only to state accurately,18 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 evidence: “tamen, says he, illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quaesitor, flectit libido, corrumpit spes, infirmat metus; ut in tot rerum angustiis nihil veritati loci relinquatur.”19 [“Nevertheless, these torments are regulated by pain; they are more or less great in each sufferer, according to his strength of mind or body, the inquisitor directs them, the will bends, hope corrupts, fear enfeebles, so that in the dread and distraction of his situation, there is no place left for the consideration of truth.”]

THE English judgment of penance for standing mute20 is as follows: that the prisoner shall be remanded to the prison from whence he come; 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 can bear, and more; that he shall have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three drafts of standing water, that shall be nearest to the prison door; and in this situation this shall be alternately his daily diet, till he dies, as the judgment now runs, though formerly it was, till he answered.21

IT has been doubted whether this punishment subsisted at the common law,22 or was introduced in consequence of the statute Westm. 1. 3 Edw. I. c. 12.23 which seems to be the better opinion. For not a word of it is mentioned in Glanvil or Bracton, or in any ancient author, case, or record, (that has yet been produced) previous to the reign of Edward I: but there are instances on record in the reign of Edward I: but there are instances on record in the reign of Henry III,24 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 Hen. IV. that, by the common law before the statute, standing mute on an appeal amounted to a conviction of the felony.25 This statute of Edward I directs such persons, “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 fort 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 straight confinement in prison, with hardly any degree of sustenance; but no weight is directed to be laid upon the body, so 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 mirror26 as a species of criminal homicide: to which we may add, that the record of 35 Edw. I. (cited by a learned author27) most clearly proves, 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 is usually called, pressing him to death, was gradually introduced between the reign of Edward I and 8 Hen. IV, when it first appears upon our books;28 and was 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 first29 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 may be conceived of its legality, and the repugnance of its theory (for it rarely is carried into practice) to the humanity of the laws of England, all seem to require a legislative abolition of this cruel process, and a restitution of the ancient 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 consequent escheat in felony were removed, the peine forte et dure might still remain, as a monument of the savage rapacity, with which the lordly tyrants of feudal antiquity hunted after escheats and forfeitures; but no man would ever be tempted to undergo such a horrid alternative. For the law is, that by standing mute, and suffering this heavy penance, the judgment, and of course the corruption of the blood and escheat of the lands, are 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 being given, and so the lord lost his escheat. But notwithstanding these terrors, some hardy delinquents, conscious of their guilt, and yet touched with a tender regard for their children, have rather chosen to submit to this painful death, than the easier judgment upon conviction, which might expose their offspring not only to present want, but to future incapacities of inheritance. But in high treason, as standing mute is equivalent to a conviction, the same judgment, the same corruption of blood, and the same forfeitures attend it, as in other cases of conviction.30 And thus much for the demeanor of a prisoner upon his arraignment, by standing mute.

II. THE other incident to arraignments, exclusive of the plea, is the prisoner’s confession of the indictment. Upon a simple and plain confession, the court has 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.31

BUT there is another species of confession, which we read much of in our ancient 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, does confess the fact before plea pleaded; and appeals or accuses others, his accomplices, of the same crime, in order to obtain his pardon. In this case he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offenses; and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to answer it: and if he has no reasonable and legal exceptions to make to the person of the approver, which indeed are very numerous, he must put himself upon his trial, either by battle, or by the country; and, if vanquished or found guilty, must suffer the judgment of the law, and the approver shall have his pardon, ex debito justitiae [as due to justice]. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon has failed, viz. the convicting of some other person, and therefore his conviction remains absolute.

BUT it is purely in the discretion of the court to permit the approver thus to appeal, or not; and, in fact, this course of admitting approvements has been long disused: for the truth was, as Sir Matthew Hale observes, that more mischief has arisen to good men by these king of approvements, upon false and malicious accusations of desperate villains, than benefit to the public by the discovery and conviction of real offenders. And therefore, in the times when such appeals were more frequently admitted, great strictness and nicety were held therein:32 though, since their discontinuance, the doctrine of approvements is become a matter of more curiosity than use. I shall only observe, that all the good, whatever it be, that can be expected from this method of approvement, is fully provided for in the cases of robbery, burglary, housebreaking, and larceny to the value of five shillings from shops, warehouses, stables, and coachhouses, by statutes 4 & 5 W. M. c. 8. 10 & 11 W. III. c. 23. and 5 Ann. c. 31. which enact, that, if any such felon, being out of prison, shall discover two or more persons, who have committed the like felonies, so as they may be convicted thereof; he shall in most cases receive a reward of 40£ and in general be entitled a pardon of all capital offenses, excepting only murder and treason. And if any such person, having feloniously stolen any lead, iron, or other metals, shall discover and convict two offenders of having illegally bought or received the same he shall by virtue of statute 29 Geo. II. c. 30 be pardoned for all such felonies committed before such discovery.

NOTES

     1.    2 Hal. P. C. 216.

     2.    Bract. L. 3. de coron. C. 18. § 3. Mirr. c. 5. sect. 1. § 54. Flet. l. 1. c. 31. § 1. Britt. c. 5. Staundt. P. C. 78. 3 Inst. 34. Kel. 10. 2 Hal. P. C. 219 2 Hawk. P. C. 308.

     3.    State Trials. VI. 230.

     4.    2 Hal. P. C. 219.

     5.    Raym. 408.

     6.    Foster. 365, etc.

     7.    2 Hal. P. C. 316.

     8.    2 Hawk. P. C. 327.

     9.    2 Hal. P. C. 317.

   10.    3 Inst. 178.

   11.    2 Hawk. P. C. 329. 2 Hal. P. C. 317.

   12.    2 Hal. P. C. 320.

   13.    2 Hal. P. C. 321. 2 Hawk. P. C. 332.

   14.    3 Inst. 35.

   15.    Barr. 69. 385.

   16.    Rushw. Coll. i. 638.

   17.    Cod. l. 9. t. 41. l. 8. & t. 47. l. 16. Fortesc. de LL. Angl. c. 22.

   18.    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.”

   19.    Pro Sulla. 28.

   20.    2 Hal. P. C. 319. 2 Hawk. P. C. 329.

   21.    Britton. c. 4. & 22. Flet. l. 1. c. 34. § 33.

   22.    2 Inst. 179. 2 Hal. P. C. 322. 2 Hawk. P. C. 330.

   23.    Staundf. P. C. 149. Barr. 65.

   24.    Emlyn on 2 Hal. P. C. 322.

   25.    Al common ley, avant le statute de West. 1. c. 12. si ascun ust estre appeal, et ust estre mute, il serra convict de felony. [By the common law before the statute, standing mute on an appeal amounted to a conviction of the felony.] (M. 8 Hen. IV. 2.)

   26.    ch. 1. § 9.

   27.    Barr. 62.

   28.    Yearb. 8 Hen. IV. 1.

   29.    Et suit dit, que le contrarie avoit esire fait devant ces heures. [And it was said, that the contrary had been done before this time.] (Ibid. 2)

   30.    2 Hawk. P. C. 331.

   31.    2 Hal. P. C. 225.

   32.    2 Hal. P. C. ch. 29. 2 Hawk. P. C. ch. 24.

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