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. By the old common law the accessory could not be arraigned till the principal was attainted, unless he chose it: for he might waive the benefit of the law; and therefore principal and accessory might, and may still, be arraigned, and plead, and also be tried together. But otherwise, if the principal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessory in any of these cases could not be arraigned; for non constitit whether any felony was committed or no, till the principal was attainted; and it might so happen that the accessory should be convicted one day and the principal acquitted the next, which would be absurd. However, this absurdity could only happen where it was possible that a trial of the principal might be had subsequent to that of the accessory; and therefore the law still continues that the accessory shall not be tried so long as the principal remains liable to be tried hereafter. But, by statute I Anne, c. 9, if the principal be once convicted, and before attainder (that is, before he receives judgment of death or outlawry) he is delivered by pardon, the benefit of clergy, or otherwise; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases in which no subsequent trial can be had of the principal, the accessory may be proceeded against as if the principal felon had been attainted; for there is no danger of future contradiction. And upon the trial of the 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, 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. 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 proceedings. But, first, let us observe these incidents to the arraignment, of standing mute or confession. Standing Mute. 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; or, 3. Upon having pleaded not guilty refuses to put himself upon the country. If he says nothing, the court ought, ex offico, to empanel 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 say nothing in arrest of judgment, is a point yet undetermined. If he be found to be obstinately mute (which a prisoner hath been held to be that hath cut out his own tongue), 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 is the lowest species of felony, viz., in petit larceny, and in all misdemeanours, standing mute hath always been equivalent to conviction. But upon appeal 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. The English judgment of penance for standing 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. 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 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 demeanour of a prisoner upon his arraignment by standing mute; which now in all cases amounts to a constructive confession. Confession of the Indictment. 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, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment. It hath also been usual for the justice 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. Chapter XXVI. OF PLEA AND ISSUE. 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. I. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue. Plea to Jurisdiction. I. A plea to the jurisdiction is where an indictment is taken before a court that has no cognizance of the offence; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions; in these or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged. Demurrer to Indictment. II. A demurrer to the indictment. This is incident to criminal cases as well as civil when the fact alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is not felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man were indicted for feloniously stealing a greyhound, which is an animal in which no valuable property can be had, and therefore it is no felony, but only civil trespass, to steal it in this case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Plea in Abatement. III. A plea in abatement is principally for a misnomer, a wrong name, or false addition to the prisoner. And if either fact is found by a jury, then the indictment shall be abated, as writs or declarations may be in civil actions, of which we spoke at large in the preceding book. But in the end there is little advantage accruing to the prisoner by means of these dilatory pleas; because if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule upon all pleas in abatement that he who takes advantage of a flaw must at the same time show how it may be amended. Let us, therefore, next consider a more substantial kind of plea, viz.: Special Plea in Bar. IV. Special pleas in bar; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These are of four kinds: a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pleas which may be pleaded in bar of an appeal; but these are applicable to both appeals and indictments. Plea of Autrefoits Acquit. 1. First, the plea of autrefoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence, it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. Plea of Autrefoits Convict. Secondly, the plea of autrefoits convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has been held that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment of murder; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. Plea of Autrefoits Attaint. 3. Thirdly, the plea of autrefoits attaint, or a former attainder, which is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony by judgment of death, either upon a verdict or confession, by outlawry, or heretofore by abjuration, and whether upon an appeal or an indictment, he may plead such attainder in bar to any subsequent indictment, or appeal for the same or for any other felony. Plea of Pardon. 4. Lastly, a pardon may be pleaded in bar; as at once destroying the end and purpose of the indictment by remitting that punishment which the prosecution is calculated to inflict. Plea of Not Guilty. V. The general issue, or plea of not guilty, upon which plea alone the prisoner can receive his final judgment of death. In case of an indictment of felony or treason, there can be no special justification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence against a robber on the highway, or a burglar; but he must plead the general issue, not guilty, and give this special matter in evidence. For (besides that these pleas do in effect amount to the general issue, since, if true, the prisoner is most clearly not guilty) as the facts in treason are laid to be done proditorie et contra ligeantiae suae debitum, and in felony, that the killing was done felonice; these charges of a traitorous or felonious intent are the points and very gist of the indictment, and must be answered, directly by the general negative, not guilty; and the jury upon the evidence will take notice of any defensive matter and give their verdict accordingly, as effectually as if it were, or could be, specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner. When the prisoner has thus pleaded not guilty, non culpabilis, or nient culpable, which was formerly used to be abbreviated upon the minutes thus, "non (or nient) cul.," the clerk of the assize, or clerk of the arraigns, on behalf of the crown, replies that the pris |