*The prisoner when brought to the bar was formerly called upon

[* 420] by name to hold up his hand: which, though apparently a trifling circumstance, was of this significance, that by holding up his hand constitit de persona, and the prisoner owned himself to be of that name by which he was called (x). However, this was not an indispensable ceremony, and is now disused. The indictment is, however, to be read to the prisoner distinctly in the English tongue (which was law, even while all other proceedings were in Latin), that he may fully understand the charge against him. After which it is to be demanded of him, whether he be guilty of the crime whereof he stands indicted, or not guilty. (738)

When a prisoner is arraigned, he either, 1. Stands mute; or, 2. Confesses the fact; which circumstances we may call incidents to the arraignment; or else, 3. he pleads to the indictment, which is to be considered as another stage of the proceedings. But, first, let us observe these incidents to the arraignment, of standing mute, or confession.

1. Regularly a prisoner is said to stand mute, when, being arraigned, he either (1.) Makes no answer at all; or (2.) Answers foreign to the 1. Standing mute. purpose, or with such matter as is not allowable; and will not

answer otherwise.

If the prisoner says nothing, the court ought forthwith to impanel a jury to inquire, 1st, whether the prisoner be mute of malice, or by the visitation of God; if the latter, then 2ndly, whether he is able to plead; and lastly, whether he is sane or not; on which issue the question is, whether he is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to be able to make a proper defence (y).

Formerly if the accused were found to be obstinately * mute (which [* 421] a prisoner was held to be who had cut out his tongue (z)), then, on an indictment of high treason, such standing mute was equivalent to a conviction, and was followed by the same judgment and execution (a). And as in this the highest crime, so also in the lowest species of felony, viz. petty larceny, and in all misdemeanors, standing mute was always equivalent to conviction. But upon indictments for other felonies, the prisoner was not, by the ancient law, looked upon as convicted, so as to receive judgment for the felony; but should, for this 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

(x) 2 Hale, P. C. 219.

(y) See Reg. v. Pritchard, 7 C. & P. 303, 305, n. As to the course to be taken where

the prisoner is deaf and dumb, but can read, see R. v. Thompson, 2 Lewin, C. C. 137.

(z) 3 Inst. 178.

(a) 1 Hawk. P. C. 329; 2 Hale, P. C. 317.

(738) The prisoner may, with the consent of the court, waive the reading of the indictment; and if, after such waiver, he pleads to the indictment, it will be deemed equivalent to a formal arraignment and plea. Goodin v. State, 16 Ohic St. 344. See Washburn v. People, 10 Mich. 372; 1 Bish. Cr. Proced., § 733.

In Pennsylvania, by statute, arraignment is only required in cases triable exclusively in oyer and terminer. But in such cases it is obligatory. Dougherty v. Com., 69 Penn. St.

he might know his danger (b); and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy (c) allowed him, even though he was too stubborn to pray it (d). 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 it might rarely be put in execution. (739)

The rack, or question, to extort a confession from criminals, is a practice, different in its nature from the peine forte et dure; this having been 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 [* 422 ] 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 (e); where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth (f). 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 (g). Though doubtless, torture was afterwards applied to state criminals on more than one occasion during the reign of Charles I. (h).

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 such is the reason given for its introduction in the civil law (i); 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 we need only state accurately, in order effectually to expose this inhuman species of mercy, the uncertainty of which, as a test and criterion of truth, was long ago pointed out by one who lived in a community where it was usual to * torture slaves in order to furnish evidence: "tamen," [* 423] says he, "illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quæsitor, fleclit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur (k).

The English judgment of penance for standing mute (1) was as follows: that the prisoner be remanded to the prison from whence he came; and put into a

(739) The only recorded American case in which the punishment described in the text was inflicted, was that of Giles Corey, 2 Hildreth's U. S. Hist. 160; 3 Bancroft's U. S. Hist.

93.

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 he should be nearest to the prison door; and in this situation such should be alternately his daily diet till he died, or (as anciently the judgment ran) till he answered (m).

It has been doubted whether this punishment subsisted at the common law (n), or was introduced in consequence of the statute Westm. 1, 3 Ed w. 1, c. 12 (0), which seems to be the better opinion. And, at all events, the uncertainty of its origin, the doubts that were conceived of its legality, and the repugnance of its theory (for it rarely was 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 ancient common law; whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge. If, indeed, the corruption of the blood and the consequent escheat in felony had been removed, the judgment of peine forte et dure might perhaps have still innocently remained, as a monument of the savage rapacity with which the lordly tyrants of feudal antiquity hunted after* escheats and forfeitures; since no one would [* 424] 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, 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 (p). And, to the honour of our laws, it was enacted by statute 12 Geo. 3, c. 20, that every person who, being arraigned for felony or 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 now, by the 7 & 8 Geo. 4, c. 28, s. 2, whenever the prisoner, on his arraignment for any treason, felony, piracy, or misdemeanor, stands mute of malice, or will not answer directly to the charge, a plea of not guilty may be (and always is) entered for him by order of the court, and the plea so entered has the same effect as if the prisoner had actually pleaded it.

And thus much for the demeanor of a prisoner upon his arraignment.

2. The other incident to arraignment, exclusive of the plea, is the prisoner's actual 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

2. Confession.

(m) Britton, cc. 4 & 22; Flet. 1. 1, t. 34, s. 33. (n) 2 Inst. 179; 2 Hale, P. C. 322; 2 Hawk. P. C. 330.

(0) Staundf. P. C. 149; Barr. 65.
(p) 2 Hawk. P. C. 331.

**

tenderness to the life of the subject: and will generally advise the prisoner to retract it, and plead to the indictment (q). (740)

[* 425]

III. We are now to consider the plea of demurrer of the prisoner, that is the defensive matter alleged by him on his arraignment, if he does not confess or stand mute. This is either, 1. A plea to the jurisdiction; 2. A plea in abatement; 3. A demurrer; 4. A special plea in bar; or, 5. The general issue.

III. Plea of demurrer.

Plea of sanctuary

Formerly indeed, there was another plea, now abrogated, that of sanctuary; a brief reference to which may throw some light upon parts of our ancient law: it having been introduced and continued during the superstitious veneration that was paid to consecrate the ground in the times of popery. First then, it is to be observed, that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned) had fled to any church or churchyard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offence; and thereupon took the oath in that case provided, viz. that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return without leave from the crown; he by this means saved his life, if he observed the conditions of the oath, by going, with a cross in his hand and with all convenient speed, to the port assigned, and embarking. For if, during this forty days privilege of sanctuary, or in his road to the sea-side, the accused person was apprehended and arraigned in any court for this felony, he might plead the privilege of sanctuary, and had a right to be remanded, if taken out against his will (r). But by this abjuration his blood was attainted, and he forfeited all his goods and chattels (s). The * immunity of these privileged places was very much abridged by the stat[* 426] utes 27 Hen. 8, c. 19, and 32 Hen. 8, c. 12. And by the statute 21 Jac. 1, C. 28, all privilege of sanctuary, and abjuration consequent thereupon, was utterly taken away and abolished.

Formerly also the benefit of clergy was sometimes pleaded before trial or conviction, and was called a declinatory plea; which was the name also given Plea of benefit to that of sanctuary (t). As to the benefit of clergy, though now abolished, somewhat will be said hereafter.

of clergy.

I proceed, therefore, to some brief consideration of each of the five heads before mentioned.

1. A plea to the jurisdiction is where an indictment is taken before a court, which has no cognizance of the offence; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions: in these or similar cases, he may except to the jurisdiction of the court, or

1. Plea to the jurisdiction.

(q) 2 Hale, P. C. 225.

(r) Mirr. c. 1, s. 13; 2 Hawk. P. C. 335.

(8) 2 Hawk. P. C. 52.

(t) 2 Hale, P. C. 246.

(740) The plea of "guilty" confesses no offense where the indictment is insufficient, and contains no valid charge of an offense. Fletcher v. State, 7 Eng. (Ark.) 169. See McCauley v. U. S., Morris, 486.

This plea should be made by the defendant personally. People v. McCrary, 41 Cal. 459 See McQuillan v. State, 8 Sm. & M. (Miss.) 587.

without answering to the crime alleged (x). In some cases also the defendant may take advantage of the want of jurisdiction under the plea of not guilty; as where the objection proves that no court in England can try the indictment (y). And an objection to the jurisdiction, apparent on the face of the proceedings, may be taken advantage of on demurrer (z). (741)

2. A plea in abatement is now of rare occurrence in criminal procedure. Formerly such a plea was principally for a misnomer, a wrong name, or a false

2. Plea in abatement.

*

addition (a) to the prisoner. As, if "James" Allen, "gentleman," were indicted by the name of "John " Allen, "esquire," he might have pleaded that he had the name of James, and not of John; and that he was a gentleman, and not an esquire. And, if either fact were found by a jury, then the indictment was abated. But, in the end, there was little advantage accruing to the prisoner by means of this dilatory plea: because, [*427] if the exception were allowed, a new bill of indictment might have been framed, according to what the prisoner in his plea averred to be his true name and addition. For it was a rule, upon all pleas in abatement, that he, who took advantage of a flaw, must at the same time show how it might be amended. Moreover, the stat. 7 Geo. 4, c. 64, s. 19, enabled the court, if satisfied by affidavit or otherwise of the truth of a plea of misnomer, or want of addition, or wrong addition, forthwith to amend the indictment and call upon the party to plead as if no such dilatory plea had been pleaded. And now, by 14 & 15 Vict. c. 100, s. 24, no indictment for any offence shall be held insufficient "for want of or imperfection in the addition" of a defendant, and by s. 1 of this statute, whenever on the trial of any indictment for felony or misdemeanor there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in (amongst other things) "the Christian name or surname, or both Christian name and surname, or other description whatsoever of any person or persons whomsoever therein named or described," the court is empowered if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defence on such merits, to order the indictment to be amended. Judgment for the crown upon a plea in abatement if the indictment be for a misdemeanor is final, in treason or felony it is that the defendant do answer over (b).

8. Demurrer.

3. A demurrer to the indictment is incident to a criminal as well as to a civil case, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. A demurrer however is now in practice unusual, because, although the various defects or omissions specified in the 7 Geo. 4, c. 64, s. 20 (c), were fatal if thus taken, but were cured by

[ * 428 ]

(x) Ibid. 256.

(y) R. v. Johnson, 6 East, 583.
(z) R. v. Fearnley, 1 T. R. 316.

(a) See stat. 1 Hen. 5, c. 5.
(b) R. v. Gibson, 8 East, 107.
(c) See also s. 21.

(741) Pleas to the jurisdiction are of comparatively rare occurrence; the easier and simpler course being a writ or error or a motion in arrest of judgment. See Com. v. Gillespie, 7 Serg. & R. (Penn.) 469; Adams v. People, 1 N. Y. (1 Comst.) 173; S. C., 3 Denio, 190.