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. inal does When a criminal is arraigned, he either stands mute or con- What crim fesses the fact, which circumstances we may call incidents to when arthe arraignment; or else he pleads to the indictment, which is raigned. to be considered as the next stage of proceedings. But, first, let us observe these incidents to the arraignment, of standing mute, or confession. mute. I. Regularly, a prisoner is said to stand mute when, being I. Stands 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. 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. But whether judgment of death can be given against such a prisoner who hath never pleaded, and can [325 ] say nothing in arrest of judgment, is a point yet undetermined.i f Foster, 365, &c. fore or after the fact, in the same manner as if the principal felon had been attainted thereof, notwithstanding the principal shall die, or be pardoned, or otherwise delivered before attainder; and every such accessory shall suffer the same punishment, if convicted, as if the principal had been attainted. The 9th section applies only where at common law the accessory might have been indicted with, or after the convic tion of, the principal. Therefore, it does not apply to a person indicted as an accessory before the fact to the self-murder of another person. 1 Mood., C. C., 356; 9 C. & P., 79.* h 2 Hawk., P. C., 327. i 2 Hal., P. C., 317. (6) The proper course of proceeding in such cases, is to swear a jury to determine, 1st, whether the prisoner be mute of malice, or by the visitation of God; if the latter, 2dly, whether he is able to plead; and, lastly, whether he is sane or not; on which issue the question is whether he is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to be able to make a proper defense. See 7 C. & P., 303, 305, n. As to the course to be taken where the prisoner is deaf and dumb, but can read, see 2 Lewin, C. C., 137. An accessory before or after the fact may be indicted, tried, convicted, and punished, notwithstanding the principal felon may have been pardoned, or otherwise discharged after his conviction.-(2 R. S., 727, § 49.) In New York, if a defendant on his arraignment upon an indictment refuses to plead or answer (or, in other words, stands mute), a plea of not guilty is directed by statute to be entered by the court, and all subsequent proceedings are had the same as if he had pleaded not guilty to the indictment.-(2 R. S., 730, 70.) Thus the law has been in New York since 1788, when standing mute was declared equivalent to a plea of not guilty.-(2 Laws of N. Y., 74, § 3, Greenl. ed.) Conse quences of standing mute. If he be found to be obstinately mute (which a prisoner hath been held to be that hath cut out his own tonguek), then, if it be on an indictment of high treason, it hath long been clearly settled that standing mute is equivalent to a conviction, and he shall receive the same judgment and execution. And as in this, the highest crime, so also in the lowest species of felony, viz., in petit larceny, 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; and, after all, if he continued obstinate, and his offense was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it." 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." The rack, or question, to extort a confession from criminals, * 3 Inst., 178. 11 Hawk., P. C., 329; 2 Hal., P. C., 317. (7) But now, by the stat. 7 & 8 Geo. IV., c. 28, s. 2, whenever the prisoner, on his arraignment for any treason, felony, piracy, or misdemeanor, stands mute of malice, or will not answer directly to the charge, a plea of not guilty may be (and always is) entered for him by order of the court, and the plea so entered has the same effect as if the prisoner had actually pleaded it. (8) 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 pœnæ 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 forte et dure, the prosecutor and the court could exercise no discretion, and show no favor to a prisoner who stood obstinately mute. And in the legal history of this country m2 Hal., P. C., 320. n 2 Hal., P. C., 321; 2 Hawk., P. C., 332. In a there are numerous instances of persons is a practice of a different nature, this having been only used [326] 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 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, 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 honor and the honor 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, viz., because the laws can not 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, 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 furnish evidence: "tamen," says he, “illa tormenta gu- [327] - bernat dolor, moderatur natura cujusque tum animi tum corporis, regit quæsitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur."t The English judgment of penance for standing mute" was as follows: that the prisoner be remanded to the prison from • 3 Inst., 35. P Barr., 69, 385. Rushw. Coll., i., 638. Cod., 1. 9, t. 41, 1. 8, & t. 47, 1. 16; Fortesq., De LL. Ang., c. 22. The Marquis Beccaria (ch. 16), in an exquisite piece of raillery, has proposed this problem with a gravity and precision that are truly mathematical: (9) There is no doubt, however, that torture was afterward applied to state criminals on more than one occasion during the reign of Charles I. See Mr. Jardine's "Reading on the Use of Torture in England.” 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, or was introduced in consequence of the statute Westm. 1, 3 Edw. I., c. 12, 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 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. This statute of Edward I. directs [328] 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., 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, 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 firstd altered, and, instead ▾ Britton, c. 4 & 22; Flet., 1. 1, t. 34, § 33. w 2 Inst., 179; 2 Hal., P. C., 322; 2 * Staundf., P. C., 149; Barr., 65. Al common ley, avant le statute de et ust estre mute, ill serra convict de b 6 Rym., 13. e Year-b., 8 Hen. IV., 1. d Et fuit dit, que le contraire avait estre fait devant ces heures. (Ibid., 2.) 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 rarely was 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 as a monument of the [329 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 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. And very lately, to the honor 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 offense, 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. fesses the II. The other incident to arraignments, exclusive of the plea, II. Conis the prisoner's actual confession of the indictment. Upon a fact. e 2 Hawk., P. C., 331. (11) Two instances have occurred fession. For it would operate more since the passing of this statute, of per- powerfully as an example, and be more sons who refused to plead, and who, in satisfactory to the minds of the public, consequence, were condemned and ex- if the prisoner should suffer death after ecuted. One was at the Old Bailey, for a public manifestation of his guilt by evmurder, in 1777; the other was for burg- idence, than that he should be ordered lary, at the summer assizes at Wells, in for execution only from the presumption 1792. It might, perhaps, have been a which arises from his obstinate silence. greater improvement of the law if the [CHRISTIAN.] See, accordingly, the prisoner's silence had been considered stat. 7 & 8 Geo. IV., c. 28, s. 2, supra, a plea of not guilty, rather than a con- n. (7). |