unless he chose to be, for he might waive the benefit of the law; and in such case the principal and accessory may be simultaneously arraigned, may plead and be tried together. But otherwise, if the principal had never been indicted, had stood mute, had challenged over thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder. The accessory in any such cases could not be arraigned, for non constitit, whether any felony was committed, 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. To avoid this, the law will not allow the accessory to be tried, so long as the principal remains liable to be tried hereafter. Upon the trial of the accessory, even after the conviction of the principal, the accessory may, if he can, controvert the guilt of his supposed principal, and prove him innocent of the charge.

Incidents. When a criminal is arraigned, he either stands mute, or confesses the fact, these being incidents to the arraignment, or else he pleads to the indictment.

1. Prisoner Stands Mute. Regularly a prisoner is said to stand mute, when being arraigned for treason or felony, by : (1.) Making no answer at all.

(2.) Answering foreign to the purpose, and refusing to answer otherwise.

(3.) Pleading "not guilty ", but refusing to put himself upon the country. If he says nothing, the court should impanel a jury, to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei.1

If the latter be the case apparently, the judges in the interest of the prisoner, shall proceed to trial, and examine all points, as if he had pleaded "not guilty."

Obstinately Mute. If he be found obstinately mute, as was the case with a prisoner who actually cut out his own tongue, then on an indictment for high treason, it has been settled, that standing mute is equivalent to a conviction, and he shall receive judgment and execution. So also in the lowest species of felony, in petit larceny, and in all misdemeanors, standing mute has

1 By statute of George IV, where a prisoner pleads "not guilty," without more, he shall be put on trial by jury; but if he refuse to plead, the court may order a plea of "not guilty" to be entered, and the trial to proceed.-Chitty.

always been equivalent to conviction. But upon appeals or indictments for other felonies, or petit treason, the prisoner, by the ancient law, was not looked upon as convicted, so as to receive judgment for the felony, but should, for his obstinancy, have received the terrible sentence of penance, or peine forte et dure.

Punishment. 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 realize 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. If no other means could prevail, and the prisoner continued stubbornly mute, the judgment was given without distinction of sex or degree. A judgment, which was made exquisitely severe, that, by that very means, it would rarely need to be resorted to.

The Rack. 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 on trial, while that was a species of trial in itself. The trial by rack is utterly unknown to the law of England; though once the ministers of Henry IV erected a rack of torture, as part of their design to introduce the civil law into the kingdom, as a rule of government. This instrument was termed in derision the duke of Exeter's daughter, and still remains in the tower of London. It existed in the civil law, and was adopted by the French and other foreign nations, who 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.

Torture of the Penance. The English judgment of pen ance for standing mute, was as follows: The prisoner shall be placed in a low, dark chamber in the prison; he shall lie prone on his back, on the bare floor, naked, unless where decency forbids. On his body shall be placed a great weight of iron. He shall have no sustenance, save three morsels of the worst bread. on the first day, and three draughts of standing water on the second day. In such situation, this shall be his alternate diet until he dies, or as the earlier judgment ran, until he answers.

History of this Torture. It has been doubted, whether

this punishment existed at the common law, as it is not mentioned until the reign of Edward I, when the judgment seems to have been strict prison confinement, with hardly any sustenance. It was possible for a man to exist under such lingering punishment for forty days. The practice of loading him with weights, called pressing him to death, was gradually introduced between the reigns of Edward III and Henry IV, being intended as a species of mercy to the delinquent, by abridging his torment; and instead of continuing till he answered, it was directed to continue till he died. 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 hence this lingering punishment was probably intended to extort a plea, without which no judgment of death could be given; and so the lord lost his escheat. But in high treason, standing mute was equivalent to a conviction.

Present Result of Standing Mute. At present, if a prisoner, upon his arraignment, stands mute, it amounts in all cases to a constructive confession.1

II. Confession of the Prisoner. Upon a simple and plain confession, the court awards judgment; but it is usually reluctant to record such confession, out of tenderness to the prisoner, and will generally advise him to retract it, and plead to the indictment.

Confession by Approvement. There is another species of confession, spoken of formerly, of a far more complicated kind, called approvement. It is, when a person indicted of treason or felony, and arraigned, confesses the fact before plea entered, and appeals or accuses others in the same crime, in order to obtain his pardon. He is then called an approver, or prover, probator, and the party accused or appealed, the appellee. Such approvement can only be in capital cases, and it is, in effect, equivalent to an indictment, since the appellee is equally called upon to answer it; and if he has no legal exceptions to make to the person of the approver, he must put himself upon his trial. If found guilty, he must suffer the judgment of the law; and the approver shall have his pardon, ex debito justitiae. If the appellee

1 The practice now, is for the court to enter a plea of not guilty for the accused party.

be acquitted, the approver shall receive judgment to be hanged, upon his own confession of the indictment, for the condition of his pardon had failed, viz.: the conviction of another person. It is in the discretion of the court to permit the approved thus to appeal; but in fact, it has long been disused, for much mischief arose to good men, by false and malicious accusations thus made.

Accomplices. It has, however, been usual for the justices of the peace to admit an accomplice to testify against his fellows, upon implied confidence, which the judges of gaol-delivery have usually countenanced, that if such accomplice makes a full discovery of his crimes, and gives his evidence without prevarication, he shall not himself be prosecuted.

CHAPTER XXVI.-PLEA AND ISSUE.

How Made: 1. A plea to the jurisdiction.
2. A demurrer.

3. A plea in abatement.

4. A special plea in bar.

5. The general issue.

Plea of Sanctuary. Formerly there was another plea, now abrogated, that of sanctuary. If a person accused of any crime, except treason and sacrilege, had fled to a church or churchyard, and within forty days thereafter, went in sackcloth and confessed himself guilty before the coroner, giving the details of the offence; and took oath, that he abjured the realm, from which he would forthwith depart from such port as should be assigned him, and would never return, except by leave of the king; he thus saved his life, by going, with cross in hand, at convenient speed, to the port assigned, and embarking. By this abjuration, his blood was attainted, and his goods forfeited.

Plea of Benefit of Clergy. Formerly also, the benefit of clergy used to be pleaded before trial or conviction, and was called a declinatory plea, which name was also given to that of sanctuary. But as the prisoner upon a trial has a chance to be acquitted, and if convicted of a clergyable felony, is entitled

equally to his clergy after as before conviction, this course was disadvantageous, and therefore the benefit of clergy is now rarely pleaded, but if it be done, it is prayed before judgment.1

I. Plea to the Jurisdiction. This is where the indictment is taken before a court, which has no cognizance of the offence; as for the crime of treason at the quarter sessions, in which case the defendant may except to the jurisdiction of the court, without answering at all to the crime alleged.

II. Demurrer to the Indictment. The prisoner, in such case, acknowledges the fact alleged to be true, but joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, or whatever the crime is alleged to be. Some hold, that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution, as if convicted by verdict. Others deny this, holding that in such case, he shall be directed to plead the general issue, not guilty, after a demurrer determined against him. The latter appears the more reasonable method, because if a defendant admits the fact in court, and refers it to the opinion of the court, whether it be felony or not; and the court so decides it to be felony; the court will not record the confession, but permit him afterwards to plead not guilty. Though a man, by mispleading in a civil action, may lose his property in some cases, yet the law will not suffer him, by such niceties, to lose his life.

Seldom Used. Demurrers to indictments are seldom used, since the same advantages may be taken upon a plea of not guilty, or afterwards in arrest of judgment, when the verdict has established the fact.

III. Plea in Abatement. This is principally for a misnomer, a wrong name, or a false addition to the defendant. In such case, the indictment may be abated, as writs or declarations may be in civil actions. In the end, little advantage accrues to the defendant by means of these dilatory pleas; because if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner, in his plea, avers to be his true name. For it is a rule, upon all pleas in abatement, that he, who takes advantage of a flaw, must at the same time show how it may be amended.2

felony.

The benefit of clergy is abolished by statute of George IV, in all cases of 2 Such defects are amendable, or are cured by verdict.