Pleading guilty. is suffered to bear witness for himself, nay even a voluntary forgiveness by the party injured ought not in true policy to intercept the stroke of justice."* Sometimes the prosecutor and defendant agree before the defendant pleads to the indictment, and then the defendant comes into court in his proper person, and pleads guilty to the indictment; and upon proving (by a subscribing witness) or an affidavit made and filed, a general release executed by the prosecutor, the defendant submits to a small fine, (to wit) such as the court is pleased to impose for the offence against the King's peace. Before this division of the subject be entirely closed, it may be not altogether superfluous to observe that the punishment for assaults, like other trespasses and misdemeanors, being fine and imprisonment, the degrees of these two * 4 Black. Com. 363. Every man who has any experience as a Justice of the Peace, must concur with the Judge in his suggestion respecting the motives which too often influence prosecutions for assault; but it may fairly be asserted that such motives do not prevail more in prosecutions at the Sessions before Justices, than at the assizes before Judges, although the rank and situation of the parties prosecuting at one or the other, may somewhat vary. And it may not unreasonably be admitted that the Justices of the Peace, being better acquainted with the characters of the parties living in their immediate neighbourhood, than the Judges of Assize can be, who are mostly strangers to the country, are therefore at least as adequate to determine in what instances a practice generally censurable, may be occasionally beneficial. constituent parts of it ought to be respectively proportioned not only to the nature and magnitude, of the offence; but to the rank, situation, health, and other circumstances of the offender. Some assaults, which are made with intent to commit some more enormous crime, as to spoil the wearing apparel of the person assaulted; to rob him; or on account of money won at gaming; are made obnoxious to a higher punishment than fine and imprisonment by special statutes; but there are others, where the intent is laid and also proved, to be to commit rape, buggery, &c. which call for imprisonment of more than usual duration and strictness; and other cases in which the quarrelsome disposition of the offender, threats of repeating the offence, general behaviour in prison, and a great variety of other considerations, make it reasonable in the Court also to require sureties from the prisoner for his further keeping the peace, a practice which has obtained much of late years, and cannot be too highly recommended, inasmuch as it thereby becomes the interest of his pledges to keep him within the bounds of decorum. THESE matters being dispatched, if the Grand Bills found by the grand Jury have found any bills, it may be conveni-jury. ent to try the Prisoners, in order that the petty *See Pract. Expos. Title, PEACE, BREACH OF, BY ASSAULT. Jurors (many of whom come from considerable distances) may be set at liberty in reasonable time, reserving the appeals till nearer the concluding business of the Court. When the Grand Jury have agreed upon any bills, they bring the same into Court: and the clerk of the peace calls every juryman by his name, who severally answer, to signify they are present; and the foreman of the jury hands the indictments to the clerk of the peace, who thereupon says to the jury thus: "Gentlemen, you agree the Court shall amend matter "of form, altering no matter of substance?" The jury signifying their consent, the clerk of the peace reads the names of the offenders, and offences, of every indictment, whether the bills. are found to be true or not (as endorsed by the jury;) and on those bills not found, the clerk of the peace makes a cross, or other private, mark.* The gaoler being called to set his Prisoners to the bar, and the crier being called to make a bar, that is, to dispose of the company, that a way may be made open from the court to the Prisoners, and that the Court, jury, and prisoners may see each other, one of the Prisoners is called to:-A. B. hold up your hand.†' Though this holding up of the hand may seem a trifling circumstance, yet it is of this * Cro. Cir. Comp. 34. † Dalt. c. 125. importance, that thereby he admits himself to be the person indicted. However, the ceremony of holding up the hand is not required in the case of a peer, nor is it of absolute necessity in the case of a common person." 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 sufficient.† And this is called the arraignment of the ArraignPrisoner, and to arraign, is nothing else, but meut. to call the Prisoner to the bar of the Court to answer the inatter charged upon him in the indictment.+ The Prisoner is to be called to the bar by his name; and it is laid down in Bracton, that 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 they now usually come with their shackles upon their legs, for fear of an escape, but 1 * 2 Hale's Hist. 219. stand at the bar unbound till they receive judg ment.* The arraignment of a Prisoner therefore consists of these parts: 1st, The calling the Prisoner to the bar; as has been stated. 2ndly, Reading the indictment distinctly to him in English, that he may fully understand his charge. 3dly, Demanding of him whether he be guilty or not guilty ;† in the following manner : You A, B. stand indicted by the name of A. B, for that you, &c. so read the indictment through, and then ask the Prisoner, How say you, A. B. are you guilty, or not guilty? If he answer that he is guilty, then the confession is recorded, and no more done till judgment.‡ If he make no answer at all, and will not plead, he shall have the same judgment as if he had confessed the indictment.§ But if he say not guilty, he is then asked, how will you be tried? to which the common answer is, By God and the country: then the clerk says, God send you a good deliverance; and writes over the Prisoner's name on the indictment, po, se; that is, ponit se, puts himself upon God and the country.|| * Ibid.-4 Black. Com. 322. † Ibid. § 12 Geo. 3, c. 20. 2 Hale's Hist. 119.-Cro. Cir. Comp. p. 12. |