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circumstance, yet is of this importance, that by the holding of his hand constat de persona, and he owns himself to be of that name by which he is called ". 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.

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, had stood mute, had challenged above thirty-five jurors peremptorily, (2) 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 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 Ann. c. 9. if [324] 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 * Raym. 408.

d 2 Hal. P. C. 219.

(2) As to the effect of challenging more than thirty-five jurors peremptorily, see post, 354.

BB S

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, 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 other wise: or, 3. Upon having pleaded not guilty, refuses to put himself upon the country. If he says nothing, the court ought ex officio to impannel 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. But whether judgment of death can be given against such a pri[325]soner who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined'.

Ir he be found to be obstinately mute, (which a prisoner hath been held to be that hath cut out his own tongue*,) 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'. And as in this the highest crime, so also in the lowest species of felony, viz. in petit larciny, and in all misdemesnors, standing mute hath always been equivalent to conviction. But upon appeals or indictments for other felonies, or petit treason, the prisoner was not, by the antient law, looked upon as convicted, 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; 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." 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 judgment, 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 [326] 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 ;

1 2 Hawk. P. C. c.30. § 9. 2 Hal. P.C. 317.

m2 Hal. P. C. 320.

n 2 Hal. P. C. 321. 2 Hawk. P. C c. 30. § 24.

3 Inst. 35.

where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth P. (3) 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". 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 it's subsequent adoption by the French (4) and other foreign nations: 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, 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 [327] 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 tam corporis,

(3) I am afraid it was used more often in the reign of Elizabeth, than the text seems to imply, and in the case of persons, who were afterwards tried and convicted upon evidence elicited by this mean. See Lingard, vol. viii. p. 521. who describes the instruments of torture in use, and gives a list of many upon whom they were applied.

(4) This disgraceful practice no longer exists in the French law; and in the case of an unauthorised or illegal imprisonment, it is made a capital crime to inflict torture on the party imprisoned. Code Penal. 1. 3.

t. 2. s. 344.

"regit quaesitor, flectit libido, corrumpit spes, infirmat metus, "ut in tot rerum angustiis nihil veritati loci relinquatur.”

THE English judgment of penance for standing" 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 prison-door; and in this situation this should be alternately his daily diet till he died, or (as antiently the judgment ran) till he answered."

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. 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., 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. This statute of Edward I. directs such persons "as will not put themselves upon inquests of felonies before [ 328 ] "the judges at the suit of the king, to be put into hard and

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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 strait confinement in prison, with hardly any degree of sustenance;

t Pro Sulla. 28.

u 2 Hal. P. C. 319. 2 Hawk. P. C. c.30. § 16.

§ 33.

Britton, c. 4. & 22. Flet. l. 1. t.34.

y Emlyn on 2 Hal. P. C. 322.

Al common ley, avant le statute de West.1. c.12. si ascun ust estre appeal, et ust estre mute, il serra conviet de fe

w 2 Inst. 179. 2 Hal. P. C. 322. lony. (M.8. Hen. IV. 2.) 2 Hawk. P. C. c.30. § 16.