[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 (d).

On a charge of treason or felony, when the prisoner is brought to the bar, he is called upon by name to hold up his hand (e); 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 (f). 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 (g).

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.

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 the proceedings. But, first, let us observe these incidents to the arraignment-of standing mute, or confession.]

(d) State Tr. iv. 230. And see Hawk. P. C. b. 2, c. 28, s. 1, n. (2); Waite's case, 1 Leach, C. C.

36.

(e) By 19 & 20 Vict. c. 16, s. 7, it is provided, that whenever any indictment or inquisition shall have been transmitted or removed to the Central Criminal Court under the provisions of that Act, the person

charged shall be thereon arraigned in the same manner in all respects, as if the offence had been committed within the jurisdiction of that court, and the indictment or inquisition had been originally returned there.

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

(g) R. v. Ratcliffe, 1 W. Bl. Rep. 3.

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 (h). In the first case the rule of the antient law was, that a jury was to be impanelled to inquire whether the prisoner stood obstinately mute, or was dumb ex visitatione Dei. If the latter appeared to be the case, the judges were to proceed to the trial, and examine all points as if he had pleaded not guilty (i). But if found to be obstinately mute, then, in treason, (and also in all misdemeanors, and in petty larcenies,) it was held that standing mute was equivalent to conviction. [But upon indictment for any other felony, the prisoner, after trina admonitio, and a respite of a few hours, was subject to the barbarous sentence of peine forte et dure (k); viz. to be remanded to prison and put into a low dark chamber, and there laid on his back on the bare floor naked, unless where decency forbade; that there should be placed upon his body as great a weight of iron as he could bear, and more: that he

(h) He was also formerly considered as standing mute, if, upon pleading not guilty, he at the same time refused to put himself upon the country, that is, refer the matter to trial by jury. (2 Hale, P. C. 316; 4 Bl. Com. 324, 340.) But now, by statute 7 & 8 Geo. 4, c. 28, s. 1, he shall by the plea of not guilty, without any further form, be deemed to have put himself upon his country, for trial.

(i) 4 Bl. Com. 324; Hawk. P. C. b. 2, c. 30, s. 7.

(k) Blackstone (vol. iv. p. 327) remarks on this punishment, that it has been doubted whether it subsisted at the common law, or was introduced in consequence of the statute Westminster the first.

He inclines to this latter opinion, and cites 2 Inst. 179; 2 Hale, P. C. 322; Hawk. P. C. b. 2, c. 30, s. 16; Staundf. P. C. 149; Barr. 82; Emlyn on 2 Hale, P. C. 322, and Year Book, 8 Hen. 4, c. 2. By these two last authorities, it would appear that at common law, the standing mute in felony (as well as in treason and misdemeanors) was a confession of the charge. As to peine forte et dure, much information will be found in Reeves's Hist. Eng. L. vol. ii. p. 134; vol. iii. pp. 133, 250, 418. That author thinks it was introduced sometime between the fifth year of Henry the third, and the third year of Edward the first.

[should 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 that in this situation such should be alternately his daily diet, till he died; or, as antiently the judgment ran, till he answered (1).]

Afterwards, however, it was provided by 12 Geo. III. c. 20, that standing mute in felonies, also, should be equivalent to a conviction: and now by 7 & 8 Geo. IV. c. 28, s. 2, it is enacted, that if any person, being arraigned upon, or charged with, any indictment or information for treason, felony, piracy or misdemeanor, shall stand mute of malice, or will not answer directly to the indictment or information (m);—in every such case it shall be lawful for the

(1) 4 Bl. Com. 327; Britt. cc. 4 and 22; Flet. 1. 1, c. 34, s. 33; Hawk. P. C. b. 2, c. 30, s. 16. Blackstone (vol. iv. p. 326) remarks upon this strange proceeding, that it is a practice of a different nature from the rack, or question, to extort a confession from criminals,-this having been only used to compel a man to put himself upon his trial, that being a species of trial itself. As to the rack, he says that "it is "utterly unknown to the law of "England; though once, when the "Dukes of Exeter and Suffolk, and "other ministers of Henry the "sixth, had laid a design to intro"duce the civil law into this king"dom as the rule of government; "for the beginning thereof, they "erected a rack for torture; which 66 was called in derision the Duke "of Exeter's Daughter, and still "remains in the Tower of London,

(3 Inst. 35,) where it was occa"sionally used as an engine of "state, not of law, more than once "in the reign of Queen Elizabeth.

was allowable by the laws of "England." Mr. Hallam observes, that though it be most certain that the English law never recognized the use of torture, yet there were many instances of its employment in the reigns of Elizabeth and James; and, among others, in the case of the Gunpowder Plot. He says, indeed, that in the latter part of the reign of Elizabeth, "the rack seldom "stood idle in the Tower;" and cites Lingard, (note U,) for a specification of the different kinds of torture used. (Hall. Const. Hist. vol. i. p. 201; vol. ii. p. 11.) (m) In the case where the prisoner

court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty" on behalf of such person ; and the plea so entered shall have the same force and effect, as if such person had actually pleaded the same (0). When there is reason to doubt, however, whether the prisoner is sane, a jury should be charged to inquire whether he is sane or not; which jury may consist of any twelve persons who may happen to be present (p); and upon this issue, the question will be whether he has intellect enough to plead, and to comprehend the course of the proceedings. If they find the affirmative, the plea of not guilty may be entered, and the trial will proceed (2); but if the negative, the provision of 39 & 40 Geo. III. c. 94, s. 2, is then applicable; by which it is enacted, that insane persons indicted for any offence, and on their arraignment found to be insane by a jury lawfully impanelled for that purpose, so that they cannot be tried upon the indictment,-shall be ordered by the court to be kept in strict custody till the royal pleasure be known ().

is deaf and dumb, he may be communicated with by signs, or the indictment may be shown to him, with the usual questions written on paper. (See Jones's case, 1 Leach, 120; Thompson's case, 2 Lewin, 137; R. v. Dyson, 7 Car. & P. 306; 1 Chit. Cr. L. 417.)

(0) This course was taken in R. v. Bitton, 6 Car. & P. 306.

(p) 1 Chit. Cr. L. 424.

(a) There have been several instances in which persons, found to be mute by the visitation of God, have been tried, and had sentence passed upon them. (See Jones's case, ubi sup. ; Steel's case, 2 Leach, 507.) But in Blackstone's time it was a point yet undetermined whether judgment of death

could be given against a prisoner who had never pleaded, and could say nothing in arrest of judgment. (4 Bl. Com. 325; 2 Hale, P. C. 317. And see Mr. Christian's notes to Blackstone, ubi sup.)

(r) Vide sup. p. 26. In several cases the course taken, when the prisoner has stood mute, has been to put three points to the jury; first, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings. (See R. v. Dyson, 7 Car. & P. 305; R. v. Pritchard, ib. 303; The Queen v. Berry, Law Rep., 1 Q. B. D. 447.)

II. The other incident to arraignment, to which we have referred, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment; but it is usually very backward in receiving and recording such confession, at least in capital cases, out of tenderness of the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment (s).

[But there is another species of confession, which we read much of in our antient books, of a far more complicated kind, which is called approvement; and that was when a person, indicted of treason or felony, and arraigned for the same, did confess the fact before plea pleaded, and appeal or accuse others, his accomplices, of the same crime, in order to obtain his pardon. In this case he was called an approver, or prover, probator; and the party appealed, or accused, was called the appellee. Such approvement could only be, in capital offences; and it was, as it were, equivalent to an indictment, since the appellee was equally called upon to answer it; and if he had no reasonable and legal exceptions to make to the person of the approver,which indeed were very numerous,-he was obliged to put himself on his trial by the country: and, if found guilty, suffered the judgment of the law; and the approver had his pardon ex debito justitiæ. On the other hand, if the appellee were acquitted by the jury, the approver received judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon failed, viz. the conviction of some other person; and therefore his conviction remained absolute.

But it was purely in the discretion of the court, to permit the approver thus to appeal or not; and, in fact, this course of admitting approvements hath been long disused; for the truth is, as Sir Matthew Hale observes, that more mischief arose to good men by these kinds of

(s) 4 Bl. Com. p. 329; 2 Hale, P. C. 225.