*used to compel a man to put himself upon his trial; that [*326] 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 VI, 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; (0) 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. (2) 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 fur

[*327] nish evidence; "tamen," says he, "illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quæsitor, flectit, libido, corrumpit spes, infirmat metus, ut în tot rerum angustiis nihil veritati loci relinquatur" (nevertheless, these torments are regulated by pain; they are more or less great in each sufferer, according to his strength of mind or body, the inquisitor directs them, the will bends, hope corrupts, fear enfeebles, so that in the dread and distraction of his situation, there is no place left for the consideration of truth). (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

(p) Barr. 92, 496.

(q) Rushw. Coll. i. 638.

(0) 3 Inst. 35.
(r) Cod. l. 9, t. 41, l. 8, & t. 47, l. 16. Fortesq. de LL. Ang. c. 22.

(8) 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.

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. (2) This statute of Edward I directs such persons" as will not put themselves upon inquests of felonies before the judges at the suit of [*328] 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 is 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 removed, the judgment of peine forte et dure might perhaps have still innocently remained,

(v) Britton, c. 4. & 22. Flet. l. 1, t. 34, § 33.

(w) 2 Inst. 179. 2 Hal. P. C. 322. 2 Hawk. P. C. 330.

(y) Emlyn on 2 Hal. P. C. 822.

(x) Staundf. P. C. 149. Barr. 82.

(z) Al common ley, avant le statute de West. 1, c. 12, si ascun ust estre appeal, et ust estre mute, ill serra convict de felony. (M. 8 Hen. IV. 2.)

(a) Ch. 1, § 9.

(b) 6 Rym. 13.

(c) Yearb. 8 Hen. IV, 1.

(d) Et fuit dit, que le contraire avait estre fait devant ces heurs. (And it was said, that the contrary had been done before this time.) (Ibid. 2.)

1

*as a monument of the savage rapacity with which the lordly [*329] tyrants of feudal 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 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 or 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 demeanor of a prisoner upon his arraignment, by standing mute; which now, in all cases, amounts to a constructive confession.2

II. Pleading guilty.-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)

*

Confession of approvers.- 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 felony, and arraigned for [*330] the same, doth confess the fact before plea pleaded: and appeals or accuses others, his accomplices, of 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

1 The practice now, since the statute 7 and 8 Geo. IV, c. 28, is for the court to enter a plea of not guilty for the accused party. See notes, pp. 324 and 325, supra.

When the prisoner is arraigned, he should be released from shackles if any are upon him. People v. Harrington, 42 Cal. 165; S. C., 10 Am. Rep. 296; State v. Kring, 64 Mo. 591.

2 [Not so in the United States. Ante, *325; Washburn, Manual Cr. L, Ewell's 2d ed., 132.]

3 [Nolle contendere.- Another answer sometimes made by a prisoner on arraignment is called a plea of nolle contendere; that is, I do not contend; it operates much like a protestation in a civil case (Andrews' Steph. PL. 278), and confesses the guilt for the purpose only of the present suit. Com. v. Horton, 9 Pick. 206. It is allowable only in misdemeanors and in the discretion of the court. Wash. Man. Cr. L., Ewell's 2d ed., 131, citing Com. v. Adams, 6 Gray, 359.]

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 justitia (as due to justice). 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 convicting of some other person, and therefore his conviction remains absolute.

But it is 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 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, that can be expected from this method of approvement, is fully provided for in the cases of coining, robbery, burglary, house-breaking, horsestealing, and larceny to the value of five shillings from shops, warehouses, stables, and coach-houses, by statutes 4 and 5 W. and M. c. 8, *6 and 7 Wm. III, c. 17, 10 and 11 Wm. III, c. 23, and [*331] 5 and 6 Ann. c. 13, 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 40%., 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. 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 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. (2) 2

(g) 2 Hal. P. C. ch. 92. 2 Hawk. P. C. ch. 24.

(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.

1The statutes here mentioned are since repealed.

2 If the accomplice admitted as a witness by the justice makes full and true

We are now to consider the plea of a 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.

Obsolete plea of sanctuary.- 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

disclosure, he ought not to be prose cuted. But he cannot plead this in bar, of an indictment, for it is merely an equitable claim to the mercy of the crown from the magistrate's promise of indemnity upon certain conditions which have been performed. R. v. Rudd, Cowp. 331. In the United States, it would seem that, if the prisoner makes full disclosure, immunity is substantially pledged him; the government is under implied, if not express, obligation not to prosecute. U. S. v. Lee, 4 McLean, 103; Com. v. Knapp, 10 Pick. 447; Foster v. People, 18 Mich. 266. If the accomplice, after such understand. ing with the state and admission of his guilt, refuses to testify, or testifies falsely, he forfeits his immunity and may be prosecuted and convicted on his own confession. Com. v. Knapp, ubi supra.

The importance to be attached to uncorroborated evidence of an accomplice is a matter for the jury to deter mine. They may legally convict upon it, but in general would not be inclined to give it much credit. R. v. Hastings, 7 C. & P. 152. So Lord Mansfield in R. v. Rudd, Cowp. 331, says, as to the evidence of accomplices: "Though clearly competent, their single testimony is seldom alone sufficient for a jury to convict upon." "Lord Ellenborough laid it down that, "No one can seriously doubt that a conviction is legal, though it proceed upon the evidence of an accomplice, only judges, in their discretion, will advise a jury not to believe an accomplice, unless he is confirmed, or only so much as he is confirmed; but if he is believed, his testimony is unquestionably sufficient to establish the facts to which he deposes." R. v. Jones, 2 Camp. 132. The court should not instruct the jury as

to what weight is to be given to an ac complice's testimony. The matter lies peculiarly within the province of the jury. Hamilton v. People, 29 Mich. 173; George v. State, 39 Miss. 570. It is not error for a court to refuse to advise a jury that they ought not to convict on such evidence. It is a question for the jury, who may legally convict on the evidence. People v. Jenness, 5 Mich. 305. The jury may convict upon such evidence if they are satisfied by it, but it is a general practice to consider it alone insufficient to convict upon. People v. Reeder, 1 Wheel. Cr. C. 148. The statements of an accomplice are always to be received with caution, and the court should always so advise, but if the testimony carries conviction to the jury, they should give it the same effect as that of any other witness. It will authorize a conviction in any case. People v. Costello, 1 Denio. 83; Allen v. State, 10 Ohio St. 287. If an accomplice testifies, he must make full disclosure. He cannot stop short and claim the privilege of refusing to criminate himself. Foster v. People, 18 Mich. 266; Com. v. Price, 10 Gray, 472; State v. Condry, 5 Jones, 418. But this disclosure need not be made as to criminality in other cases than the one on trial. Pitcher v. People, 16 Mich. 142. In order to make an accomplice a competent witness in behalf of the prosecution, he must not be put on trial at the same time with the other prisoners. It makes no difference whether he has been convicted or not, or whether he is joined in the same indictment with others or not, if only he is not tried with them. People v. Wright, 38 Mich. 744; Allen v. State, 10 Ohio St. 287; George v. State, 39 Miss. 570; State v. Brien, 32 N. J. 414.