Edward Christian Sir William Blackstone.

Commentaries on the laws of England: in four books; with an ..., Volume 2 online

. (page 115 of 135)
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by any court having jurisdiction to try the he does not confess himself guilty, a plea of not

principal felons, although the offences be com- guilty is entered. (2 R. S. 730, ^ 70.) Thus

mitted on the seas or abroad ; and, if the of- tne law as to standins mute is abolished,

fences be committed in different counties, may (9) By 7 and 8 G. lY. c. 28, s. 1, where the

be tried in either. prisoner pleads " not guilty,** without more,

Bv s. 10, accessaries after the fact may be lie shall be put on his trial by jury ; and by s.

triea by any court having jurisdiction over the 2, if he refuses to plead, the court may order

principal felons, as in the proceeding a. ; and, a plea of " Not Guilty" to be entered, and

oy s. 11, in order that all accessaries may be proceed as in other cases. But the latter is

eonvietod and punished, in cases where the discretionary ; and where there is any real

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{*335] jndgttiMil of death eta be giT«ii agauMt saek a ^ptmrnx wbo
haik never pleaded, and can say aodting in aneat of jndgBiealy is
e point yet uideteimined (t)«

If he be foimd to be obstinately mote (which a prisoner hath been held
to be that hath cut oat his own tongue) (1), then« if it be on an indictment
of high treason, it hath long been clearly settled, that standing mute is an
equivalent to a conviction, and he shall receive the same judgment and ex-
ecntton (l)» And as in this the highest crime, so also in the lowest species
of felony, viz. in petit larceny, and in all misdemeanors, standing mote halh
always been equivalent to conviction. But upon appeab or indictments
for other felonies, or petit treason, the prisoner was not, by the ancient law,
looked upon as oonvicted, so as to receive judgment for the felony ; but
•hottld, for his obstinacy, have received the tenible sentence of ;>efMMe, <nr
jMtM (which, as will appear presently, was probably nothing more thaa a
cormpted abbreviation of prisane) forte €t dure.

Before this was pronounced the prisoner had not only Hina admonition but
also a respite of a few hours, and the sentence was distinctly read to him,
that he might know his danger (m) ; and, after all, if he continued ob-
stinate, and his offence was clergyable, he had the benefit of his clergy
allowed him, even though he was too stubborn to pray it (a). Thus tender
"was the law of inflicting this dreadful punishment ; but if no other means
oould prevail, and the prisoner (when charged with a capital felony) cmi-
•lianed stubbornly mute, the judgment was then given against him without
any distinction of sex or degree. A judgment, which was purposely or-
dained to be exquisitely severe, that by that very means it might rarely be
put in ejEecution (10).

(0 tHaLP.CSlT.

(le) 3 Init..l7a

(D 1 Hawk. P. C. 989.

I Hal. P. C. S17.


(m) Ibid, 331. S Hawk. P. C. 333.

doabt whether the Tefiiaal to plead arises from
obstioacy or inability, the court may, and
will, impanel a jury to try that quetition. In
eaae of insanitf , thia is specially prorided for
by the oorepealed statate of 30 and 40 G. III.
c. 94^ a. 1 of which enacts, that the jury, in
case of any person charged with treason, dec,
ptorinf wqtan the tritU to be insane, shall de-
clare whether he was acouitted by them on
account of insanity, and tne court shall order
tiim to be kept in custody till his majesty's
pleasure be known, and his majesty ma^ give
«n order for the safe custody of such insane
person ; and s. 3 enacts, that insane persons,
indicted for any offence, and found to be in-
sane by a jury, to be impanelled on their qr-
raignment^ shall be ordered by the court to be
kept in custody till his majesty's pleasure be
known. The latter section has been held to
extend to cases of misdemeanor. Rex v.
Litde, R. and R. C. C. 430. In Rex v. Ro-
berts, Car. Cr. L. 57, a prisoner would not
plead, and a jury being impanelled to try
whether he stood mute by tne risiution of
Ood, his counsel claimed a ri^ht to address
the jury, as this was an issue with the affirma-
tiye on the prisoner. Thus was allowed by
Park and AJbbott^ Js. The prisoner's counsel
•ddreassed the jury, and called witnesses to
prove he was insane. The jury found that he
was so, and Park, J., directed that he should

be detained until his majesty's pleasure skmld
be known.

As to the law of New- York, see preceding
note : no insane person can be triedf seBtaac-
ed, or punished. (2 R. S. 697, ^ 1.)

(10) Aulus Gellioa with more truth has made
the same observation upon the erael law of
the Twelve Tables, Dt mupe ddnlcre mohmIo,
" Eo emisilio tanta immanitas paenat danmciata
ettt ne ad earn unquam perveniretwr f* for be
adds, " dissectum esse emtiqvtitus neminem ej**-
dem luque legi netjue audhtt'* lib. 20. c. 1. Bat
with respect to the horrid judgment of the jmwm
forU et durej the prosecutor and the court could
exercise no discretion, or shew no favour to a
prisoner who stood obstinately mute. AikI in
the legal history of this country there are nu-
merous instances of persons, who have had
resolution and patience to undergo so terrible
a death in order to benefit their heirs by pre^
venting a forfeiture of their estates, which
would nave been the consequence of a convic-
tion by a verdict. There is a memorable stoiYof
an ancestor of an ancient family in the north of
England. In a fit of jealousy he killed his
wife ; and put to death his children who were
at home, b^ throwing them from the battle-
ments of his castle ; and proceeding with an
intent to destroy his only remaining child, an
infiuit nursed at a farm-house at some distancti,
he was intercepted by a stonki of thiuid«r aad

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The Taek, or qiiMtiaiitto extoit a coBfessioa tkom oriminaki, is a
practice of a different nature ; this having been oi^ *uaed to com- [*326]
pel a man to put himself upon his trial ; tkat being a species of
trial in itself. And the trial by rack is uttedy unknown to the law of
England ; though once when the dukes of Exeter and Suffolk, and other
ministers of Henry IV. had laid a design to istrodace the civil law into
this kingdom as the rule of government, for a beginning thweof they erect*
ed a rack for torture ; which was called in derision the Duke of Exeter's
daughter, and still remains in the tower of London (o) ; where it was oc-
casionally 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 Vil-
liers 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 (q). It seems astonishing that tins usage of administer^
ing 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) :
vis. 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 hu
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 [*d27]
furnish evidence : ** tamen^^ says he, " ilia tormenta guhemat dolor,
moderatur natura cujusque turn animi turn corporis^ r4git' quaesitoftjlictit lihi*
do, corrumpit spes, infirmat metus^ ut in tot rerum angustiis nihil veritaH loci
relinquatur (f)."

The English judgment of penance for standing (v) mute was as fol-
lows : that the prisoner be remanded to the prison from whence he came ;
and put into a low, dark chamber ; and there be laid on hi? back, on the
bare door, 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

(o) % Tnat. 85. matleal ; " The force of the musclet and the Rensl-

(p) But. 9S.4M. bility of the nerves of an innocent person being gi-

(q) Rushw. Coll. i. 038. Ten, it is required to find the degree of pain neces-

(r) Col. I, 9, t. 41, 1. 8, 4> (. 47, 1. 10. Forteeq. i» waij to make him confess himself guilty of a giTtn

LL, -AMg. e. SS. crime.'*

(#) The marquis Beccarta (ch. 16.), In an exqni- (t) Pro SuBOj S8.

site piece of raiUeiy, has proposed this problem^ (•) S Hal. P. C. 319. 9 Hawk. F. C. SS0.

with a gravity end precision that are truly mathe- (v) Britton, c. i, A 29. Flet. 1 1, t. 34, 4 38.

lightning. This awakened in his bieast the to justice, in corder to secure biaestatM to this
oompunotions of oonsoience. He desisted from child, he had tha reaoltttion to die under th«
bU pQipoae, and having aonendered himeelf dreadful judgment of prim/brU <f durt .

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law (w), or WBS introduced in conseqaence of the statute Westm. I. 3^
Edw, I. c. 12. (x) which seeniB to be the better opinion. For not » woid
of it is mentioned in (^anril 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 per-
sons accused of fekmy, and standing mute, were tried in a particular man*
ner, by two successiTo juries, and convicted ; and it is asserted by the
judges in 8 Hen. IV. that, by ihe common law before the statute, standing
mute on an appeal amounted to a conviction of the felony (s).
[*326] This statute of Edward I. direcU such persons ^^ as will not put
themselyes upon inquests of felonies before the judges at the suit
of the. king, to be put into hard and strong prison (saieni mys en la prisone
fori et dMre) as those which refuse to be at the common law of the land.*^
And, immediately after this statute, the form of the judgment appears ia
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 Home 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 Imgering punishment I should therefore imagine that the
practice of loading him with weights, or, as it was usually cSleiii^ 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 tiU he answer-
ed, it was directed to continue tiU 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 concured to require
a legislative abolition of this cruel process, luid 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 cor-
ruption of the blood and the consequent escheat in felony had been re-
moved, the judgment of peine forte et dure might perhaps have
[*329] still innocently remained, *as a monument of the 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 Uiat no judgment of death could be given, and
so the lord lost his escheat. But in high treason, as standing mute is

(w) Shut. 170. 9 HiL P.O. 392. S Hawk. P.O. ttrru emciet d* ftlmf, ( JT. 8 ITm. /V. 9 )
3S0. (a)ch. 1,«0.
(x) Staondf. P. C. 140. Bur. 89. (*) 6 Raym. 19.
. lT«u*.8r

(y) Bml7non9BaLP.C.S99. («} Tmrt». 8 Ben. F^. 1.

(s) M eummon ky, awmt U ttatMit d* W^ti. 1, «. (i() Et fuU dit, fM 2* m
19, Bi Mciai Md utn mpp^al , ti utt utrt sHrfc, ill dnmt cu Amn. {Ikid, 9.)

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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 ar-
raigned for felony and piracy, shall stand mute or not answer directly to
tlie 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 (11). And thus much for the demesnor of a prisoner upon his
arraignment, by standing mute ; which now, in all cases, amounts to a
constructive confession.

II. The other incident to arraignments, exclusive of the plea, is the pri-
soner's actual confession of the indictment. Upon a simple and plain con-
fession, the court hath nothing to do but to award judgment : but it is usu-
ally very backward in receiving and recording such confession, out of ten-
derness to the life of the subject ; and will generally advise the prisoner
to retract it, and plead to the indictment (/).

But there is another species of confession, which we read much of in
our ancient books, of a far more complicated' kind, wbich is called
approvement. And that is when a ^person, indicted of treason or [*330]
felony, and arraigned for the same, doth confess the fact before plea
pleaded ; and appeals or accuses others, his accomplices, in the same crime,
in order to obtain his pardon. In this case he is called an approver or pro^
ver, probatory 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 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 van-
quished or found guilty, must suffer the judgment of the law, and the ap-
prover shall have his pardon ex dehito justitae. 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 conviction of some other
person, and therefore his conviction remains absolute.

But it is purely in the discretion of the court to permit the approved
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 approve-
ments, 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 ad-
mitted, great strictness and nicety were held therein (^) : though, since their

(«) S Hawk. p. C. ttl. {g) 8 Hal. P. C. ch. 99. 9 Hawk. P. C. cb. 94.

(/) SHaLP.C.995.

(11) Two ioatapcM have occurred since not guilty, rattier than a confossion. For it
the passiog of this statute, of persons who re- would operate more powerfully as an example,
fused to plead, and who in consequence were and be more satisfactory to the minds of the

condemned and executed. One was at the public, if the prisoner should suffer death after

Old Bailey, for murder, in 1777; the other a public manifestation of his guilt by evidence,

was for buiglaiy, at the summer assises at than that be should be ordered for execution

Wells, in 1792. It might perhaps have been only from the presumption which arises from

a greater improvement of the law, if the pri- his obstinate silence. See note 8, p. 324, as

Boner's silence had been considered a plea of to law of New- York.

Vol. IL 83

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discontinuance, the doctrine of apfyroyements is becOBM a nutter of more
curiosity than use. I shall only obsenre^thai all the good whatever it be,
than can be expected from this method of approvement, is fully provided
for in the cases of coining, robbery, burglary, house-breaking, borse-steal-

ing, and larceny to the value of five stuUings from shops, warehoosesy
[*331] stables, and coach-houses, by statutes 4 dt 5 W. d& M. c. 8. *6 d&

7 W. IIL c. 17, 10 & 11 VV. III. c. 23, and 5 Ann. c. 31, which
enact, that if any such offender, being out of [H^ison, 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 offen-
ces, excepting only murder and treason ; and of them also in the case of
coining (A). And if any such person, having feloniously stolen any lead,
iron, or other metal, shall discover and convict two offenders of having ille-
gally 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 discove-
ry (12). 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 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 aflerwards
gives his evidence without prevarication or fraud, he shall not himself
be prosecuted for that or any other previous offence of the same de-

(h) The pardon for dlscoverini^ offencos against (i) The ktng «. Rndd ; Mich. 16 Geo. TH. on a
the coinage act of 15 Geo. II. c. 38. extends only case reserved drom the Old Bailey, Oct. 1779
to all tueh offences.

(12) These acts are now repealed ; see notes
17 and 18, p. 294, 295, ante.

(13) In the case of Mr«. Rudd, ia which
this sabject is clearly and abW eiplained by
lord Mansfield, and again by Mr. J. Aston, in
delivering the opinion of all the judges, (Cowp.
331.) it is laid down that no aathonty in given
to a justice of peace to pardon an offender,
and to tell him he shall be a witness at all
events against others. But where the evi-
dence appears insafficlent to convict two or
more without the testimony of one of them,
the magistrate may encourage a hope that he,
who will behave fairly and aisclose the whole

hruth, and bring the others to justice, shall
himself escape punishment. But this discre-
tionary power exercised by the justices of
peace is founded in practice only, and' cannot
control the authority of the court of gaol-deli-
very, and exempt at all events the accomplice
from being prosecuted. A motion is always
made to the judge for leave to admit an ac-
complice to be a witness, and unless he should
see some particular reason for a contrary con-
duct, he will prefer the one to whom this en-
oouragement has been given by the justice of
peace. This admission to be a witness amounts
to a promise of a recommendation to mercy,
upon condition that the accomplice make a
foil and fair disclosure of all the circumstan-
ces of the crime, for which the other prison-

ers are tried, and in which be has been con-
cerned in concert with them. Upon iktiare
on his part with this condition, he ioHeits nil
claim to proti^ction. And apoo a trial some
years ago at York, before Mr. J. Boiler, the ae-
complice, who was admitted a witness, denied
in his evidence all that he had before confees-
ed, upon which the prisoner was acquitted ;
but tne judf^ ordered an indictment to be
preferred against this accomplice for the aame
crime, and upon his previous confession, sad
other circumsunees, he was convicted and ex-
ecuted. And if the jory were satisfied with
his guilt, there can be no question with legaid
both to the law and justice of the case.

The learned commentator says, that the ae-
complioe thos admitted a witness, ahaU not
afterwards be prosecuted for that or any olfar
previous ofenct of the aam$ degm. tfra.
Rudd's case does not warrant tbe extent of
that position, for the decision of that case, and
what is advanced by Mr. J. Aston (Cowpu
341.), and as the editor ooaoeivee the reason
and principles of this doctrine, will not extend
the claim of the witness to mercy beyond
those offences in which he has been connected
with the prisoners, and oonoeming whieh he hna
previously undergone an examination. Awl
with regard to these crimes he ma^ be eroas-
examined by the coonsel for the prisoner, b«t
ofeonrse he mayreittse to eriffliante Umnlf

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Wb are now to consider the plea of the prisoner, or defensire matter
alleged by him on his arraignment, if he does not confess or stand mate.
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.

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 oar ancient law : it being introduced and con-
tinued 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 accused of any crime (except tre^ison, wherein the crown, and sar
crilege, wherein the church, was too nearly concerned) had fled to any
church, or church-yard, and within forty days after went in sackcloth and
confessed himself guilty before the coroner, and declared all the particular
circumstances of the offence ; and thereupon took the oath in that case
pro?ided, mat. that he abjured the realm, and would depart from thence
forthwith at the port that should be assigned him, and would never return

of oUmt ekftij^t, ai^init which thst proseea-
tioa affords him no protection. The evidence
and information of an accomplice taken ae-
oording to the statutes 1 & 2 Ph. & M. c. 13.
and 3 and 3 Ph. & M. c. 10. may be rsad
against a prisoner, upon proof of the death of
die accomplice ; bat it can have no effect, nn-
IcM It ia corroborated in the same manner as
hia living testimony. Westbeer's case, Leach,
14. See farther, as to the evidence of an ac-
eemplioe, 1 Chitty'a Grim. L. e03. and Surk.
onEvid. paitIV.17.

It has now been solemnly decided that an
accomplice admitted as king's evidence, and
performing the condition on wihch he is ad-
mitted as a witness, is not entitled^ as matter
of right, to be exsmpt from prosecution for
tothar offences with which he is charged, but
that it will be matter in the discretion of the
judge whether he will recommend him for a

Online LibraryEdward Christian Sir William BlackstoneCommentaries on the laws of England: in four books; with an ..., Volume 2 → online text (page 115 of 135)