But in case the prisoner absolutely refuses to answer, or in an impertinent manner delay or trifle with the court, then he is deemed a mute; but if he speaks not at all, nor gives any sign by which the Court shall be satisfied that he is able to speak, then an inquest of officers, that is of twelve persons who happen to be by, are to enquire whether his standing mute arises from his contempt of the Court, or be really an infirmity under which he labours from the hands of God.  If it be found the latter, then the Court, as counsel for the prisoner, shall hear the evidence with relation to the fact, and proceed therein as if the prisoner had pleaded not guilty; but if, on the contrary, the Court or the inquest shall be satisfied that the prisoner remains a mute only from obstinacy, then in some cases judgment shall be awarded against him as if he had pleaded or were found guilty, and in others he shall be remitted to his penance, that is to suffer what the Law calls Peine forte et dure, which is pressing, of which the readers will find an account in the subsequent life of Burnworth, alias Frazier; and therefore I shall not treat further of it here.

If, from conviction of his own guilt and a consciousness that it may be fully proved against him, the prisoner plead guilty to the indictment, it is considered as the highest species of conviction, and as soon as it is entered on record the Court proceeds to judgment without further proceedings on the indictments.  But if the prisoner plead not guilty, and put himself for trial upon his country, then a jury of twelve men are to pass upon the defendant, and upon their verdict he is either to be acquitted or convicted.

And with respect to this jury, the English Law appears again more equitable than perhaps any other in the world, for in this case as the jury comes severally to the Book to be sworn, to try impartially between the King and the prisoner of the bar, according to the evidence that is given upon the indictment, the prisoner is even then at liberty to except against, or as the law term it, to challenge, twenty of the jury peremptorily, and as many more as he thinks fit on showing just cause.  So also, if the prisoner be an alien, the jury are to be half aliens and half English.  So tender is our constitution, not only of the lives of its natural born subjects, but, also of those who put themselves under its protection, that it has taken every precaution which the wit of man could devise to prevent prejudice, partiality, or corruption from mingling in any degree with the sentences pronounced upon offenders, or in the proceedings upon which they are founded.