[*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, 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 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. (6), 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 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. 12, si 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.)

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 (11). 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 approvement. And that is when a person, indicted of treason or [*330] felony, 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 vanquished or found guilty, must suffer the judgment of the law, and the approver shall have his pardon ex debito justitae. 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 hath arisen to good men by these kind 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 doctrine of approvements is become a matter of more curiosity than use. I shall only observe, that all the good whatever it be, than can be expected from this method of approvement, is fully provided for in the cases of coining, robbery, burglary, house-breaking, horse-stealing, and larceny to the value of five shillings from shops, warehouses, [331] stables, and coach-houses, by statutes 4 & 5 W. & M. c. 8. *6 &

7 W. III. 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 (12). It hath also been usual for the 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 gaol-delivery 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) (13).

(A) The pardon for discovering offences against the coinage act of 15 Geo. II. c. 28. extends only to all such offences.

(12) These acts are now repealed; see notes 17 and 18, p. 294, 295, ante.

(13) In the case of Mrs. Rudd, in which this subject is clearly and ably explained by lord Mansfield, 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 insufficient 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 prison

(i) The king v. Rudd; Mich. 16 Geo. III. on a case reserved from the Old Bailey, Oct. 1775

ers 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 accomplice, 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 of 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 has previously undergone an examination. And with regard to these crimes he may be crossexamined by the counsel for the prisoner, but of course he may refuse to criminate himself

CHAPTER XXVI.

OF PLEA, AND ISSUE (1).

WE are now to consider the plea of the prisoner, or 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 demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.

Formerly there was another plea, now abrogated, that of sanctuary; which is however necessary to be lightly touched upon, as it may give some light to many parts of our ancient law: it being introduced and continued during the superstitious veneration that was paid to consecrated 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 church-yard, 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

of other charges, against which that prosecution affords him no protection. The evidence and information of an accomplice taken according to the statutes 1 & 2 Ph. & M. c. 13. and 2 and 3 Ph. & M. c. 10. may be read against a prisoner, upon proof of the death of the accomplice; but it can have no effect, unless it is corroborated in the same manner as his living testimony. Westbeer's case, Leach, 14. See further, as to the evidence of an accomplice, 1 Chitty's Crim. L. 603. and Stark. on Evid. part IV. 17.

It has now been solemnly decided that an accomplice admitted as king's evidence, and performing the condition on wihch he is admitted as a witness, is not entitled, as matter of right, to be exempt from prosecution for other offences with which he is charged, but that it will be matter in the discretion of the judge whether he will recommend him for a pardon or not. Rex v. Lee, R. and R. C. C. 361; Rex v. Brunton, id. 454. Even the equitable claim of an accomplice to a pardon, on condition of his making a full and fair confession, does not extend to prosecutions for other offences in which he was not concerned with the prisoner with respect to such offences, there fore, he is not bound to answer on cross-examination. Lee's. Duce's, and West's cases, 1 Phil. Ev. 37. But the judges will not, in general, admit an accomplice as king's evidence, although applied to for that purpose by the counsel for the prosecution, if it appear that he is charged with any other felony than that on the trial of which he is to be a witness. C. and P. 411; Car. Cr. L. 62. Where an accomplice is eonfirmed in his evidence against one prisoner, but not with respect to

2

another, both may be convicted, if the jury think the accomplice deserving of credit. Rex v. Dawber and others, 2 Stark. N. P. C. 34; Car. Cr. L. 67, 2d ed. And see Rex v. Dawber, 3 Stark. 34-5, n. where it is said, that if the testimony of an accomplice be confirmed so far as it relates to one prisoner, but not as to another, the one may be convicted on the testimony of the accomplice, if the jury deem him worthy of credit. An accomplice does not require confirmation as to the person charged, provided he is confirmed in the particulars of his story. Rex v. Birkett and Brady, R. and R. C. C. 251. And the corroboration of his evidence need not be on every material point, but he must be so confirmed as to convince the jury that his statement is correct and true. Rex v. Barnard, I C. and P. 88. A person indicted for a misdemeanor may be legally convicted upon the uncorroborated evidence of an accomplice. Rex v. Jones, 2 Camp. 132. So may a person indicted for a capital offence. Jordaine v. Lashbrook, 7 T. R. 609. But the testimony of accomplices alone is seldom of sufficient weight with a jury to convict the offenders; the temptation to commit perjury being so great, where the witness by accusing another may escape himself. The practice, therefore, is to advise the jury to regard the evidence of an accomplice, only so far as he may be confirmed, in some part of his testimony, by unimpeachable testimony. Phil. Ev. 34, 3d ed. And see id. c. 4, § 2, and the several authorities there cited and considered.

(1) As to pleas in general, in original pro ceedings, see 1 Chit. Č. L. 2 ed. 432 to 475.