in Law, the arraigning or fet- ting a thing in order, as a person is said to arrange a writ of novel disseisin, who prepares and fits it for trial.

ARRAIGNMENT is most properly used to call a person to answer in form of law upon an indictment, &c.

When brought to the bar, the criminal is called up- on by name to hold up his hand; which though it may seem a trifling circumstance, yet is of this im- portance, that by the holding up of his hand confit de persona, and he owns himself to be of that name by which he is called. However it is not an indispensible ceremony; for being calculated merely for the pur- pose 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.

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 demand- ed 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, or else he pleads to the indict- ment.

1. If he says nothing, the court ought ex officio to impanel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex violatione 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 pri- soner hath been held to be that hath cut his own tongue), then, if it be on an indictment of high trea- son, it hath long been clearly settled, that standing mute is equivalent to a conviction, and he shall receive the same judgment and execution.

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 wa- ter 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 be answered.

It hath been doubted whether this punishment sub- stituted at the common law, or was introduced in conse- quence of the statute Westm. I, 3 Edw. I, c. 12, which seems to be the better opinion. For not a word of it is mentioned in Glanvil 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 in- stances on record in the reign of Henry III., where per- sons accused of felony, and standing mute, were tried in a particular manner, by two successive juries, and convicted; and it is asserted by the judges in 8 Henry IV. that, by the common law before the sta- tute, standing mute on an appeal amounted to a con- viction of the felony. This statute of Edward I. di- rects such persons, "as will not put themselves upon inquests of felonies before the judges at the suit of the king, to be put into hard and strong prison (soient mys en la prisone fort et dure) as those which refuse to be at the common law of the land." And, immedi- ately after this statute, the form of the judgment ap- pears in Fleta and Britton to have been only a very strict confinement in prison, with hardly any degree of sustenance; but no weight is directed to be laid up- on 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 Horne in the Mirror as a species of criminal homicide. It also clearly appears, by a re- cord of 31 Edw. III. that the prisoner might then possibly subsist for 40 days under this lingering punish- ment. It is therefore imagined that the practice of loading him with weights, or, as it is usually called, preying him to death, was gradually introduced between 31 Edward III. and 8 Henry IV. at which last period it first appears upon the books; being intended as a species of mercy to the delinquent, by delivering him the sooner from his torment: and hence it is also pro- bable, that the duration of the penance was then first altered; and instead of continuing till be answered, it was directly to continue till be died, which must very soon happen under an enormous prelude.

The uncertainty of its original, the doubts that were conceived of its legality, and the repugnance of its theory (for it rarely was carried into practice) to the humanity of the laws of England, all concurred to re- quire a legislative abolition of this cruel process, and 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.

2. If the prisoner made a simple and plain confession, the court hath nothing to do but to award judgment: but it is usually very backward in receiving and re- cording According such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and,

3. Plead to the indictment; as to which, see the article Plea of Indictment.