upon the trial of the accessory, 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 accessory 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. 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. 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) But whether judgment of death can be given against such a prisoner who hath never plead. [325] ed, 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 larciny, 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 be put in execution." f Foster, 365, &c. g 2 Hal. P. C. 316. m 2 Hal. P. C. 320. h 2 Hawk. P. C. 327. i 2 Hal. P. C. 317. (7) Aulus Gellius with more truth 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 equidem neque legi neque audivi," lib. 20. c. 1. But with respect to the horrid judgment of the peine VOL. II. 80 The rack, or question, to extort a confession from criminals, is a [326] 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 elegant ly pointed out by Tully; though he lived in a state wherein it was [327] usual to torture slaves in order to furnish evidence: "tamen," says he," illa tormenta gubernat dolor, moderatur natura cujusque tum "animi tum corporis, regit quaesitor, flectit libido, corrumpit spes, infirmat "metus, ut in tot rerum angustiis nihil veritati loci relinquatur.” (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 o 3 Inst. 35. q Rushw. Coll. i. 638. p Barr. 92. 496. r Cod. 1. 9. t. 41. L. 8. & t. 47. l. 16. Fortesq. de LL. Ang. c. 22. a. The marquis Beccaria, (ch. 16.) in an exquisite piece of raillery, has proposed this problem, with a gravity and precision that are truly mathematical: "The force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime." t Pro. Sulla. 28. u 2 Hal. P. C. 319. 2 Hawk. P. C. 329. forte et dure, the prosecutor and the court could 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 terrible a death in order to benefit their heirs by preventing a forfeiture of their estates, which would have been the consequence of a conviction 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 lightning. This awakened in his breast the compunctions of conscience. He desisted from his purpose, and having surrendered himself to justice, in order to secure his estates to this child, he had the resolution to die under the dreadful judgment of peine forte et dure.-Christian's note. 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 of Westm. 1. 3 Edw. I. c. 12. (x) which seems to be the better opinion. For not a word of it is mentioned in Glanvill or Bracton, or in any ancient author, case, or record (that hath yet been produced), previous to the reign of Ed. ward 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 appeal amounted to a conviction of the fe- [328] lony. (z). 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 corruption of the blood and the consequent escheat in felony had been remov. ed, the judgment of peine forte et dure might perhaps have still inno- [329] cently 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 : v Britton. c. 4. & 22. Flet. l. 1. c. 34. § 33. z Al common ley, avant le statute de West. 1. c. 12. si ascun ust estre appeal, et ust estre mute, il serra 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. (e) And very lately to the honour of our laws, it hath been enacted by statute 12 Geo. III. c. 20. that every person who, being arraigned for felony and 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 thus much for the demesnor of a prisoner upon his arraignment, by standing mute; which now, in all cases, amounts to a constructive confession. II. The other incident to arraignments, exclusive of the plea, 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, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment. (ƒ) But there is another species of confession, which we read much of in our ancient books, of a far more complicated kind, which is called [330] approvement. And that is when a person, indicted of treason or fe : lony, and arraigned for the same, doth confess the fact before plea pleaded; and appeals or accuses others, his accomplices, in the same crime, in order to obtain his pardon. In this case he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offences; and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to answer it and if he hath no reasonable and legal exceptions to make to the person of the approver, which indeed are very numerous, he must put himself upon his trial, either by battel, or by the country; and if vanquish. ed or found guilty, must suffer the judgment of the law, and the approver shall have his pardon ex debito justitiae. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon has failed, viz. the conviction of some other person, and therefore his conviction remains absolute. But it is purely in the discretion of the court to permit the approved thus to appeal, or not: and, in fact, this course of admitting approvements hath been long disused; for the truth was, as sir Matthew Hale observes, that more mischief has arisen to good men by these kinds of approvements, upon false and malicious accusations of desperate villains, than benefit to the public by the discovery and conviction of real offenders. And therefore, in the times when such appeals were more frequently admitted, great strictness and nicety were held therein: (g) though, since their discontinuance, the f 2 Hal. P. C. 225. e 2 Hawk. P. C. 331. g 2 Hal. P. C. ch. 29. 2 Hawk, P. C. ch. 24. (8) Two instances have occurred since the passing of this statute, of persons who refused to plead, and who in consequence were condemned and executed. One was at the Old Bailey, for murder, in 1777; the other was for burglary, at the summer assizes at Wells, in 1792. It might perhaps have been a greater improvement of the law, if the prisoner's silence had been considered a plea of not guilty, rather than a confession. For it would operate more powerfully as an example, and be more satisfactory to the minds of the public, if the prisoner should suffer death after a public manifestation of his guilt by evidence, than that he should be ordered for execution only from the presumption which arises from his obstinate silence.-Mr. Christian's note. doctrine of approvements is become a matter of more curiosity than use. I shall only observe, that all the good, whatever it be, that can be expected from this method of approvement, is fully provided for in the cases of coining, robbery, burglary, house-breaking, horse-stealing, and larciny to the value of five shillings from shops, warehouses, stables, and coach-houses, by statutes 4 & 5 W. & M. c. 8., 6 & 7. W. III. [331] c. 17., 10 & 11 W. III. c. 23., and 5 Ann. c. 31., which enact, that if any such offender, being out of prison, shall discover two or more persons, who have committed the like offences, so as they may be convicted thereof; he shall in case of burglary or house-breaking receive a reward of 401. and in general be entitled to a pardon of all capital offences, excepting only murder and treason; and of them also in the case of coining. (h) And if any such person, having feloniously stolen any lead, iron, or other metal, shall discover and convict two offenders of having illegally bought, or received the same, he shall, by virtue of statute 29 Geo. II. c. 30. be pardoned for all such felonies committed before such discovery.10 It hath also been usual for justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or, as it is generally termed, king's evidence) against his fellows; upon an implied confidence, which the judges of gaoldelivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree. (i) 11 h The pardon for discovering offences against the coinage act of 15 Geo. II. c. 28, extends only to all such offences. i The King v. Rudd; Mich. 16 Geo. III.; on a case reserved from the Old Bailey, Oct. 1775. (9) This reward is now abolished, see ante, 295. note (18). (10) The persons described in the above statutes, and also those persons to whom the king, by special proclamation in the Gazette or otherwise, has promised his pardon, lord Mansfield says, have a right to a pardon. Cowp. 334. (11) In the case of Mrs. Rudd, in which this subject is clearly and ably explained by lord Mansfeld, and again by Mr. J. Aston, in delivering the opinion of all the judges, (Cowp. 331.) it is laid down that no authority is given to a justice of peace to pardon an offender, and to tell him he shall be a witness at all events against others. But where the evidence appears insutficient to convict two or more without the testimony of one of them, the magistrate may encourage a hope that he, who will behave fairly and disclose the whole truth, and bring the others to justice, shall himself escape punishment. But this discretionary power exercised by the justices of peace is founded in practice only, and cannot control the authority of the court of gaol-delivery, and exempt at all events the accomplice from being prosecuted. A motion is always made to the judge for leave to admit an accomplice to be a witness, and unless he should see some particular reason for a contrary conduct, he will prefer the one to whom this encouragement has been given by the justice of peace. This admission to be a witness amounts to a promise of a recommendation to mercy, upon condition that the accomplice make a full and fair disclosure of all the circumstances of the crime, for which the other prisoners are tried, and in which he has been concerned in concert with them. Upon failure on his part with this condition, he forfeits all claim to protection. And upon a trial some years ago at York, before Mr. J. Buller, the accom. plice, who was admitted a witness, denied in his evidence all that he had before confessed, upon which the prisoner was acquitted; but the judge ordered an indictment to be preferred against this accomplice for the same crime, and upon his previous confession, and other circumstances, he was convicted and executed. And if the jury were satisfied with his guilt, there can be no question with regard both to the law and justice of the case. The learned commentator says, that the accomplice thus admitted a witness, shall not afterwards be prosecuted for that or any other previous offence of the same degree. Mrs. Rudd's case does not warrant the extent of that position, for the decision in that case, and what is advanced by Mr. J. Aston (Cowp. 341.), and as the editor conceives the reason and principles of this doctrine, will not extend the claim of the witness to mercy beyond those offences in which he has been connected with the prisoners, and concerning which he had previously undergone an examination. And with regard to these crimes he may be cross-examined by the counsel for the prisoner, but of course he may refuse to criminate himself of other charges, against which that |