[of the 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 (j). 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 (k). But if found to be obstinately mute, then, in treason, it was held that standing mute was equivalent to conviction; and the law was the same as to all misdemeanors. [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 (1); 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

(j) 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; and the court shall order a jury for the trial of such person accordingly.

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

(1) 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.

[forbade; that there should be placed upon his body as great a weight of iron as he could bear, and more: that he 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 (m).]

Afterwards, however, it was provided by 12 Geo. III. c. 20, that standing mute in felonies 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 informa

(m) 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 "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. "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 66 no such proceeding 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.)

tion (n);-in every such case it shall be lawful for the 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 (o). 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 (q); 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 (r).

(n) In the case where the prisoner 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.

(4) 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.)

() 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. (R. v. Dyson, 7 Car. & P. 305; R. v. Pritchard, ibid. 303.)

II. [The other incident to arraignment, 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, 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) 2 Hale, P. C. 225.

[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 admitted, great strictness and nicety were held therein (t).]

It has also been usual for the justices of the peace, by whom persons charged with felony are committed to gaol, -in cases where it has appeared probable that the evidence would otherwise be insufficient to obtain a conviction,-to hold out a hope to some one of the accomplices, that if he will fairly disclose the whole truth as a witness on the trial, and bring the other offenders to justice, he shall himself escape punishment. Such an accomplice is usually said to be admitted to become queen's evidence; but his admission in that capacity, requires the subsequent sanction of the judges of gaol delivery (u). Nor will a person in general be admitted as queen's evidence, if it appear that he is charged with any other felony than that in question (a). The testimony of an accomplice is in all cases, indeed, regarded with just suspicion (y); and unless this statement be corroborated in some material part by unimpeachable evidence, the jury are usually advised by the judge to acquit the prisoner notwithstanding (z). Moreover, if a felon, after having confessed the crime and being admitted as queen's evidence, fails in the condition on which he was so received, and refuses to give the jury, on

(t) See 2 Hale, P. C. c. 29; Hawk. P. C. b. 2, c. 24.

(u) See R. v. Rudd, Cowp. 331. (x) 2 C. & P. 411. See R. v. Lee, R. & R. C. C. R. 361; R. v. Brunton, ibid. 454.

(y) On this subject see the remarks of Holt, C. J., in Charnock's case, 4 St. Tr. 494.

(z) 1 Phil. Ev. 9th edit. 31; Taylor on Evidence, p. 779, 2nd edit. And as to the nature of the confirmation

required, see R. v. Addis, 6 C. & P. 388; R. v. Webb, ibid. 595; R. v. Moores, 7 C. & P. 270; R. v. Wilkes, ibid. 272; Despard's case, 28 How. St. Tr. 488. It is held, however, that the jury may legally convict if they think fit, on the unsupported testimony of an accomplice. (1 Phil. Ev. 30; R. v. Hastings, 7 C. & P. 152; Taylor on Evidence, p. 779, 2nd edit.; R. v. Stubbs, 1 Dearsley's C. C. R. 555.)