CHAPTER XX.

OF ARRAIGNMENT AND ITS INCIDENTS.

THE appearance of the offender, (enforced by the methods pointed out in the last chapter, unless he appears voluntarily, or is already in custody,) must, in general, be in person. But in indictments or informations in the Court of Queen's Bench, for misdemeanors, an appearance by attorney is allowed (a). And in misdemeanors generally, wherever the proceedings are instituted, the trial of the defendant, after he has once appeared, is permitted to take place in his absence (b). Immediately on the appearance to an indictment, the offender is to be [arraigned thereon; which we have considered as the fifth stage of criminal prosecution (c).

To arraign is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment (d). The prisoner is to be called to the bar by his name; and it is laid down in our antient books (e), that though, under an indictment of the highest

(a) By 19 & 20 Vict. c. 16, s. 6, it is provided that on application to the Queen's Bench for an order, that a person charged with any of fence committed, or supposed to be committed, out of the jurisdiction of the Central Criminal Court, shall nevertheless be there tried, it shall not be necessary for such person to be brought or appear in person before the Court of Queen's Bench or judge to whom the application is made.

(b) 4 Bl. Com. 375; 1 Chit. Cr. L. 411.

(c) Vide sup. p. 424.

(d) This word in Latin (says Sir M. Hale, vol. ii. p. 216) is no other than ad rationem ponere, (and in French ad reson, or abbreviated a resn,) that is, "to call to account."

(e) Bract. 1. 3, De Coron. c. 18, s. 3; Mirr. c. 5, ss. 1, 54; Flet. 1. 1, c. 31, s. 1; Brit. c. 5; Staundf. P. C. 78; 3 Inst. 34; Kel. 10; 2 Hale, P. C. 219; Hawk. P. C. b. 2, c. 28, s. 1.

[nature, he must be brought to the bar without irons, or any manner of shackles or bonds: unless there be evident danger of an escape, and then he may be secured with irons. But yet in Layer's case, A.D. 1722, a difference was taken between the time of arraignment and the time. of trial; and accordingly the prisoner stood at the bar in chains, during the time of his arraignment (ƒ).

When he is brought to the bar,] in case of treason or felony, [he is called upon by name to hold up his hand (g); which, though it may seem a trifling circumstance, yet is of this importance, that by the holding up of his hand constat de persona; and he owns himself to be of that name by which he is called (h). However, it is not an indispensable ceremony; for being calculated merely for the purpose of identifying the person, any other acknowledg ment will answer the purpose as well; therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient (i).

Then the indictment is to be read to him distinctly in the English tongue; which was law even while all other proceedings were in Latin; that he may fully understand his charge. After which, it is to be demanded of him, whether he be guilty of the crime whereof he stands indicted, or not guilty.]

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 the

(f) State Tr. iv. 230. And see Hawk. P. C. b. 2, c. 28, s. 1, n. (2); Waite's case, 1 Leach, C. C. 36.

(g) By 19 & 20 Vict. c. 16, s. 7, it is provided, that whenever any indictment or inquisition shall have been transmitted or removed to the Central Criminal Court under the provisions of that Act, the person

charged shall be arraigned in that
court in the same manner in all
respects as if the offence had been
actually committed within the juris-
diction of the court, and the indict-
ment or inquisition had been origi-
nally returned there.

(h) 2 Hale, P. C. 219.
(i) R. v. Ratcliffe, 1 W. Bl. 3.

[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 such 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(l); 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 forbade; that

(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 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.

[there should be placed upon his body as great a weight of iron as he could bare, 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

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(3 Inst. 35), where it was occasionally used as an engine of "state, not of law, more than once

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 reign 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 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.)

(a) This course was taken in R. v. Bitton, 6 Car. & P. 306.

(p) 1 Chit. Cr. L. 424.

(9) 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 undeter

be

mined 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.

(r) Vide sup. p. 111. 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.)