CHAPTER XXV. OF ARRAIGNMENT AND ITS INCIDENTS (1). 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 thə proper court, he is immediately to be arraigned thereon; which is the fifth stage of criminal prosecution. ་་་ To arraign (2), is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment (a) (3). The prisoner is to be called to the bar by his name; and it is laid down in our ancient books (b), 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 (c) (4). [*323] *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, and he owns himself to be of that name by which he is called (d). 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 (e) (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 accessary could not be arraigned till the principal was attainted, unless he chose it; for he might waive the benefit of the law and therefore principai and accessary might, and may still, be arraigned, and plead, and also be tried together. But otherwise, if the principal had never been indicted at all, and 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 accessary in any of these (a) 2 Hal. P. C. 216. (b) Bract. 1. 3, de coron. c. 18, 3. Mirr. c. 5, sect. 1,54. Flet. 7. 1, c. 31, 1. Brit. c. 5. Staundf. P. C. 78. 3 Inst. 34. Kel. 10. 2 Hal. P. C. 219. (1) See further as to arraignment and its incidents, 1 Chit. C. L. 414 to 431; Burn's J. Arraignment; Williams J. Arraignment. (2) This word in Latin (lord Hale says) is no other than ad rationem ponere, and in French, ad reson, or abbreviated a resn. 2 Hal. P. C. 216. (3) As to obtaining a copy of the indictment, assigning counsel, appearing and defending by attorney, and defending in forma pauperis, see 2 Hawk. P. C. 308. (c) State Trials, VI. 230. 1 Chit. C. L. 2 ed. 403 to 414. post, 351. (4) And it has since been held, that the court has no authority to order the irons to be taken off, till the prisoner has pleaded, and the jury are charged to try him. Waite's case, Leach, 34. (5) It is not usual to require a peer to hold up his hand. 2 Hale, 219. n. a. Hawk. 1 2 c. 28. s. 2. cases could not be arraigned: for non constitit whether any felony was com mitted or no, till the principal was attainted; and it might so happen that the accessary should be convicted one day, and the principal acquitted the next, which would be absurd. However, this absurdity could only happer. where it was possible, that a trial of the principal might be had, subsequent to that of the accessary; and therefore the law still continues, that the accessary shall not be tried, so long as the principal remains liable to be tried hereafter. But by statute *1 Ann. c. 9. (6) 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 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 accessary 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 accessary, 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 (f), that the accessary 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 (7). 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 (8). 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 otherwise or, 3. Upon having pleaded not guilty, refuses to put himself upon the country (g). If he says nothing, the court ought ex ) officio to impanel 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 (h) (9). But whether (f) Foster, 365, &c. (g) 2 Hal. P. C. 316. (6) See also the 22 Geo. III. c. 58. 29 Geo. II. c. 30; and as to New-York, see 2 R. S. 727, 49: allowing any accessary to be tried, though the principal has been pardoned or otherwise discharged after conviction. (7) See the 7 G. IV. c. 64, by s. 9 of which, accessaries before the fact, whether in cases of felony at common law, or by virtue of any statute or statutes made or to be made, may be tried as such, or as for substantive felonies, by any court having jurisdiction to try the principal felons, although the offences be committed on the seas or abroad; and, if the of fences be committed in different counties, may be tried in either. By s. 10, accessaries after the fact may be tried by any court having jurisdiction over the principal felons, as in the proceeding s.; and, by s. 1, in order that all accessaries may be convicted and punished, in cases where the (h) 2 Hawk. P. C. 327. principal felon is not attainted, it is enacted, that accessaries may be prosecuted after the conviction of the principal felon, though the principal felon be not attainted. See further as to arraignment, 1 Curw. Haw, P. C. 434, 1 Chit. Cr. L. 414. The statute mentioned in the text is repealed by the statute 7 Geo. IV. c. 64. (8) In New-York, the defendant, when a raigned, is asked if he demands a trial, and he does not confess himself guilty, a p ea o'n t guilty is entered. (2 R. S. 730, ◊ 70.) This the law as to standing mute is abolished. (9) By 7 and 8 G. IV. c. 28, s. 1, where n prisoner pleads not guilty," without more he shall be put on his trial by jury; and by s. 2, if he refuses to plead, the court may order a plea of "Not Guilty" to be entered, and proceed as in other cases. Bt the ator is discretionary: and where there is any ram [*325] judgment of death can be given against such a prison er who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined (i). } If he be found to be obstinately mute (which a prisoner hath been held to be that hath cut out his own tongue) (k), 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 (1). 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 hath always been equivalent to conviction. But upon appeals or indictments for other felonies, or petit treason, the prisoner was not, by the ancient 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 (m); 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 (n). 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 he put in execution (10). (i) 2 Hal. P. C. 317. (k) 3 Inst. 178. (1) 1 Hawk. P. C. 329. 1 Hal. P. C. 317. doubt whether the refusal to plead arises from obstinacy or inability, the court may, and will, impanel a jury to try that question. In case of insanity, this is specially provided for by the unrepealed statute of 39 and 40 G. LII. c. 94, s. 1 of which enacts, that the jury, in case of any person charged with treason, &c., proving upon the trial to be insane, shall declare whether he was acquitted by them on account, of insanity, and the court shall order him to be kept in custody till his majesty's pleasure be known, and his majesty may give an order for the safe custody of such insane person; and s. 2 enacts, that insane persons, indicted for any offence, and found to be insane by a jury, to be impanelled on their ar ment, shall be ordered by the court to be kept in custody till his majesty's pleasure be known The latter section has been held to extend to cases of misdemeanor. Rex v. Little, R. and R. C. C. 430. In Rex. Roberts, Car. Cr. L. 57, a prisoner would not plead, and a jury being impanelled to try whether he stood mute by the visitation of God, his counsel claimed a right to address the jury, as this was an issue with the affirmative on the prisoner. Thus was allowed by Park and Abbott, Js. The prisoner's counsel addresssed the jury, and called witnesses to prove he was insane. The jury found that he was so and Park. J directed that he should (m) 2 Hal. P. C. 320. (n) Ibid. 321. 2 Hawk. P. C. 332 be detained until his majesty's pleasure should be known. As to the law of New-York, see preceding note: no insane person can be tried, sentenc ed, or punished. (2 R. S. 697, ◊ 1.) (10) Aulus Gellius with more uth has made the same observation upon the cruel law of the Twelve Tables, De inope debitore secando, "Eo consilio tanta immanitas pænæ denunciata est, ne ad eam unquam perveniretur;" for he adds, “dissectum esse antiquitus neminem equi dem neque legi neque audivi," lib. 20. c. 1. But with respect to the horrid judgment of the peine forte et dure, the prosecutor and the court cou exercise no discretion, or shew no favour to a prisoner who stood obstinately mute. And in the legal history of this country there are numerous instances of persons, who have had resolution and patience to undergo so terrille a death in order to benefit their heirs by preventing a forfeiture of their estates, which would have been the consequence of a convic tion by a verdict. There is a memorable story of an ancestor of an ancient family in the north of England. In a fit of jealousy he killed his wife; and put to death his children who were at home, by throwing them from the battlements of his castle; and proceeding with an intent to destroy his only remaining child, an infant nursed at a farm-house at some distance he was intercepted by a storm of thunder and I [*326] The rack, or question, to extort a confession from criminals, is a practice of a different nature; 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 England; though once when the dukes of Exeter and Suffolk, and other ministers of Henry IV. 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 (o); where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth (p). 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 (q). 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 nations (r): 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 (s), 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 [327] furnish evidence: "tamen," says he, " illa tormenta gubernat dolor, moder.itur natura cujusque tum animi tum corporis, regit quaesitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquitur (t)." The English judgment of penance for standing (u) 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 anciently the judgment ran) till he answered (v). 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. (x) 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 hath yet been produced), previous to the reign of Edward I; but there are instances on record in the reign of Henry III. (y), 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 (z). [328] 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 strait 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 mirror (a) as a species of criminal homicide. It also clearly appears, by a record of 31 Edw. III. (b), 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 was usually called, pressing him to death, was gradually introduced between 31 Edw. III. and 8 Hen. IV., at which last period it first appears upon our books (c); being 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 first (d) 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 were conceived of its legality, and the repugnance of its theory (for it was rarely 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. Or, if the cor ruption of the blood and the consequent escheat in felony had been re moved, the judgment of peine forte et dure might perhaps have [*329] still innocently remained, *as a monument of the savage rapacity with which the lordly tyrants of feodal antiquity hunted after escheats and forfeitures; since no one would 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 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 be given, and so the lord lost his escheat. But in high treason, as standing mute is serra convict de felony. (M. 8 Hen. IV. 2) (w) 2 Inst. 179. 2 Hal. P. C. 322. 2 Hawk. P. C. 330. (z) Staundf. P. C. 149. Barr. 82. (y) Emlyn on 2 Hal. P. C. 322. (z) Al common ley, avant le statute de West. 1, c. 18, vi ascun ust estre appeal, et ust estre mute, ill (a) ch. 1, 9. (b) 6 Raym. 13. (c) Yearb. 8 Hen. IV. 1. (d) Et fuit dit, que le contraire avait estre fait devant ces heurs. (Ibid. 2.) |