the appellee; the accufer is called in Latin, probator, in Englih, prover or approver. The exceptions which the appellee was entitled to take against the approver were very numerous, and the forms to be obferved very ftrict; and it was purely in the difcretion of the court to permit the appeal, or not. The admiflion of approvements has been long difufed; for more mifchief arofe to good men by the falfe and malicious accufations of defperate villains, than benefit to the public by the difcovery and conviction of real offenders. All the good that can be expected from this method of approvement is fully provided for in cafes of coining, robbery, burglary, houfe-breaking, and larceny to the value of five fhillings. from fhops, warehoufes, ftables and coach-houfes, by various ftatutes, which enact, that if any fuch offender, being out of prifon, fhall discover two or more perfons, who have committed the like offences, fo as they may be convicted, he fhall in cafe of burglary or houfebreaking receive a reward of 40%. and in general be entitled to a pardon of all capital offences, except murder, and except all treafons, but coining. And if any fuch perfon, having feloniously ftolen any lead, iron, or other metals, fhall difcover and convict two offenders of having illegally bought or received the fame, he fall by virtue of the 29 Geo. II. c. 30. be pardoned for all fuch felonies committed before fuch difcovery.

It has alfo been ufual for the juftices of the peace, by whom any perfons charged with felony are committed to jail, to admit fome one of their accomplices to become a witnefs (or, as it is generally termed, king's evidence) against his fellows; upon an implied confidence, which the judges of jail delivery have ufually countenanced and adopted, that if fuch accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magiftrate, and afterwards gives his evidence without prevarication or fraud, he fhall not himfelf be profecuted for that or any other previous offence of the fame degree. In the cafe of Mrs. Rudd, in which this fubject is clearly and ably explained by lord Mansfield, and again by Mr. Juftice Afton, in delivering the opinion of all the judges, it is laid down that no authority is given to a juftice of the peace to pardon an offender, and to tell him he fhall be a witnefs at all events against others; but where the evidence appears infufficient to convict two or more without the teftimony of one of them, the magiftrate may encourage a hope, that he who will behave fairly and disclose the whole truth, and bring the others to juftice, fhall himself escape punishment. This difcretionary power exercifed by the juftices

of

of peace is founded in practice only, and cannot controul the authority of the court of general jail delivery, and exempt, at all events, the accomplice from being profecuted. A motion is always made to the judge for leave to admit an accomplice to be a witnefs; and unless he fhould fee fome particular reason for a contrary conduct, he will prefer the one to whom this encouragement has been given by the juftice of peace. This admiffion to be a witnefs amounts to a promise of a recommendation to mercy, upon condition that the accomplice makes a full and fair disclosure of all the circumftances of the crime for which the other prifoners are tried, and in which he has been concerned in concert with them. Upon failure of his part of the condition, he forfeits all claim to protection; as upon a trial at York, before Mr. Juftice Buller, where the accomplice who was admitted a witnefs, denied in his evidence all that he had before confeffed, upon which the prifoner was acquitted; but the judge ordered an indictment to be preferred against this accomplice for the fame crime, and upon his previous confeffion and other circumftances, he was convicted and executed.

On the arraignment of a prifoner, two incidents are worthy of notice; his ftanding mute, and his confeffing the indict

ment.

MUTE. Regularly a prifoner is faid to stand mute, when, being arraigned for treafon or felony, he either, 1. Makes no anfwer at all; or, 2. Anfwers foreign to the purpose, or with fuch matter as is not allowable, and will not anfwer otherwise; or, 3. Upon having pleaded not guilty, refufes to put himself upon the country. If he fays nothing, the court ought, ex officio, to impanel a jury to inquire whether he ftands obftinately mute, or whether he is dumb by the visitation of God? If the latter appears to be the cafe, the judges (who are to be of counsel for the prifoner, and to fee that he has law and juftice) fhall 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 prifoner, who has never pleaded, and can fay nothing in arreft of judgment, is a point yet undetermined. If he is found to be obftinately mute, (which a prifoner has been held to be that has cut out his own tongue,) then if it be on an indictment of high treason, it is equivalent to a conviction, and he receives the fame judgment and execution. And as in this, the higheft crime, fo alfo in the loweft fpecies of felony, viz. in petit larceny, and in all mifdemeanors, ftanding mute has always been equivalent to conviction; but upon appeals, or indictments for other felonies, or petit treafon, the prifoner was not, by the ancient law, looked upon as convicted, fo as to receive judgment for the felony; but fhould, for his obftinacy,

obftinacy, have received the terrible fentence of penance, or peine forte et dure. Before this was pronounced, the prifoner had not only three admonitions, but also a refpite of a few hours, and the fentence was diftinctly read to him, that he might know his danger: and, after all, if he continued obftinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too ftubborn to pray it; but if the prifoner charged with a capital felony, continued ftubbornly mute, the judgment was then given against him, without any diftinction of fex or degree. The penance was, that the prifoner be remanded to the prifon whence he came, and put into a low, dark chamber; and there be laid on his back, on the bare floor, naked, unlefs 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 fuftenance, fave only, on the first day, three morfels of the worft bread; and, on the fecond day, three draughts of ftanding water, that should be nearest to the prifon door; and in this fituation this should alternately be his daily diet, till he died, or (as anciently the judgment ran) till he aufwered. The chief end of this penance was to obtain efcheats and forfeitures; for the law was, that by ftanding mute, the judgment, and of course the corruption of the blood and efcheat of the lands, were faved in felony and petit treafon; though not the forfeiture of the goods. In high treafon, as ftanding mute is equivalent to a conviction, the fame judgment, the fame corruption of blood, and the fame forfeitures always attended it, as in other cafes of conviction. Lately, to the honour of our laws, it is enacted by stat. 12 Geo. III. c. 20. that every person who, being arraigned for felony or piracy, fhall ftand mute, or not anfwer directly to the offence, fhall be convicted of the fame, and the fame judgment and execution, with all their confequences in every refpect, fhall be thereupon awarded, as if the perfon had been convicted by verdict or confeffion of the crime.

CONFESSION. Confeffion is either. exprefs or implied. An exprefs confeffion is where a perfon directly acknowledges the crime with which he is charged; it may be received after the plea of "not guilty" recorded, notwithstanding the repugnancy. Where a perfon upon his arraignment actually confeffes himself guilty, or unadvifedly difclofes the special manner of the fact, on a fuppofition that it does not amount to felony, when in fact it does, yet the judges, upon probable circumftances that fuch confeflion may proceed from fear, menace, or durefs, or from weakness or ignorance, may refuse to record it, and fuffer the party to plead not guilty.

An

An implied confeffion is where a defendant, in a cafe not capital, does not directly own himfelf guilty, but in a manner admits it by yielding to the king's mercy; and defiring to fubmit to a small fine, in which cafe, if the court think fit to accept of fuch fubmiflion, and make an entry that the defendant threw himself on the king's grace, without putting him to a direct confeffion, or plea, the defendant is not cftopped from pleading not guilty to an action of the fame fact, as he is where the entry is that he confeffed the indictment.

No confeffion whatever, before final judgment, deprives the defendant of the privilege of taking exceptions in arrest of judgment to faults apparent in the record; for the judges muit ex officio take notice of all fuch faults; and any one, as amicus curia, may inform them of them.

The courfe of trial by jury has already been defcribed, but it may be proper to notice fome other modes anciently reforted to, and ftill often mentioned, though now utterly

difufed.

ORDEAL. The trial of ordeal is of the highest antiquity; it was peculiarly diftinguished by the appellation of judicium dei; and fometimes vulgaris purgatio, to diftinguish it from the canonical purgation. It was of two forts, either fire-ordeal, or water-ordeal; the former being confined to perfons of higher rank, the latter to the common people. Both these might be performed by deputy; but the principal was to anfwer for the fuccefs of the trial; the deputy only venturing fome corporal pain, for hire, or perhaps for friendship. Fire-ordeal was performed either by taking up in the hand, unhurt, a piece of red hot iron, of one, two, or three pounds weight, or elfe by walking barefoot, and blindfold, over nine red-hot plough-fhares, laid lengthwife at unequal distances: and if the party escaped being hurt, he was adjudged innocent: but if it happened otherwife, as without collufion it ufually did, he was then condemned as guilty. Water-ordeal was performed, either by plunging the bare arm up to the elbow in boiling water, and efcaping unhurt, or by cafting the perfon fufpected into a river or pond of cold water; and, if he floated without any action of swimming, it was deemed evidence of his guilt; but if he funk, he was acquitted.

CORSNED. Another fpecies of purgation, probably sprung from a prefumptuous abufe of revelation in the ages of dark fuperftition, was the corfned or morfel of execration; being a piece of cheese or bread, of about an ounce in weight, which was confecrated with a form of exorcifm; defiring of the Almighty that it might caufe convulfions and palenefs, and find no paffage, if the man was really guilty; but might turn to health

and

and nourishment, if he was innocent. This corfned was then given to the fufpected perfon, who at the fame time alfo received the holy facrament. This cuftom has long fince been gradually abolished, though the remembrance of it still fubfifts in certain phrases of abjuration retained among the common people; as, "I will take the facrament upon it;" or, " may "this morfel be my last," and the like.

BATTEL. The trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and it is carried on with equal folemnity as that on a writ of right but with this difference, that there each party might hire a champion, but here they muft fight in their proper perfons. Therefore women, priefts, and fome others might counterplead and refuse the wager of battel. The form and manner of combat are much the fame as upon a writ of right; only the oaths of the two combatants are vastly more ftriking and folemn. The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the fame by his body: the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body; thereupon the pellee, taking the book in his right hand, and in his left the right hand of his antagonist, fwears to this effect: "Hear this, O man, whom I hold by the hand, who calleft "thyfelf John by the name of baptifm, that I, who call my"felf Thomas by name of baptifm, did not feloniously mur

ap

der thy father, William by name, nor am any way guilty of "the faid felony. So help me God, and the fiints; and this "I will defend against thee, by my body, as this court fhall "award." To which the appellant replies, holding the bible and his antagonist's hand in the fame manner; "Hear this, "O man, whom I hold by the hand, who calleft thyfcif

Thomas by the name of baptifm, that thou art perjured; "and therefore perjured because that thou feloniously did ft "murder my father, William by name. So help me God, and "the faints; and this I will prove against thee by my body, as "this court fhall award." The battel is then to be fought with the fame weapons, viz. batons, the fame folemnity, and the fame oath against amulets and forcery, that are used in the civil combat: and if the appellee be so far vanquished that he cannot or will not fight any longer, he fhall be adjudged to be hanged immediately; and then, as well as if he be killed in battel, providence is deemed to have determined in favour of the truth, and his blood fhall be attainted; but if he kills the appellant, or can maintain the fight from funrifing, till the ftars appear in the evening, he fhall be acquitted. So alio if VOL. II.

3 A

the