26 rsimsn. nnromaa.
very usefulboth to thegoverment and the accused.· _The district
judges who have sat here since this law was first passed in June.
1864, have had very grave doubts of the constitutionality of that part
of section 4301 which provides for a trial by the court; and it has
been usual to try all contested cases by jury. It has been consid-
ered that the law is valid, excepting as to the mode of trial, and up
to this time no question has been made about it. For the reason
. already given the question is not before me, and I shall content myself
with saying that I share the doubtwhether the legislature can require
__ the court to try the main issue of facts in a criminal case; and that
I fully agree that the `remainder of the statute is valid and can be
availed of, whether that particular feature of it is constitutional- or
The only question in this case is, what should be the practice when
the defendant declines to plead or answer? There is a law which
provides thatlwhen one who is ‘“indicted" for any offense against the
United States stands mute or refuses ctoplead or answer thereto, it
shall be the duty of the court toenter a plea of not guilty in his
behalf and proceed to try him by a jury. Bev. St. § 1032. It
would seem that thislaw might be liberally construed to bring within
its. scope persons arraignedmpon information or complaint as well
as persons indicted. Suchhasibeen the practice in Massachusetts
under a similar statute.. S Ettenwcud v. Com. 10 Metc. 222; Com. v.
McKenna, -125 Mass. 397. - g ,
But there is one course of reasoning which shows conclusively that _
the petitioner has no just ground of objection to the mode of proceeding y
in the district court. Formerly the law of England and of the several
colonies was that in capital felonies a defendant standing mute was
i to undergo the petne forte et dura; that is, to be pressed to death in
prison. Giles Corey suffered in this way, in Massachusetts, in the
time of the witchcraft madness. The punishment was inflicted in
England, as I am informed by a learned friend, so late as the early
part of the last century.
In 1772 an act was passed in England, which was to extend to the
colonies and plantations in America, by which, if any person ar-
raigned upon an indictment for felony or piracy should stand mute,
he should be convicted of the felony or piracy, and the court should
award judgment and execution as if such person had been convicted
by verdict or confession. 12 Geo. III. c. 20. This had always been
the law in respect to treason, petty larceny, and misdemeanor. See
4 B1. Comm. 435; 2 Hawk. c. 30,§ 14; 1 Chit. Cr. Law, 424; 1