and efficacy, as well after as before conviction, outlawry, or [338] attainder; I shall therefore reserve the more minute consideration of them, till I have gone through every other title except only that of execution. BEFORE I Conclude this head of special pleas in bar, it will be necessary once more to observe, that though in civil actions when a man has his election what plea in bar to make, he is concluded by that plea, and cannot resort to another if that be determined against him; (as if, on an action of debt, the defendant pleads a general release, and no such release can be proved, he cannot afterwards plead the general issue, nil debet, as he might at first: for he has made his election what plea to abide by, and it was his own folly to choose a rotten defence;) though, I say, this strictness is observed in civil actions, quia interest reipublicæ ut sit finis litium: yet in criminal prosecutions in favorem vitæ, as well upon appeal as indictment, when a prisoner's plea in bar is found against him upon issue tried by a jury, or adjudged against him in point of law by the court; still he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty. For the law allows many pleas, by which a prisoner may escape death; but only one plea, in consequence whereof it can be inflicted; viz. on the general issue, after an impartial examination and decision of the fact, by the unanimous verdict of a jury. (3) It remains therefore that I consider, P 2 Hal. P. C. 239. (3) In criminal cases if a plea in abatement is found against the defendant, the general rule is that it is final, and he cannot plead over; the law laid down in the text is an exception to the rule in favorem vitæ, and prevails only in treasons and felonies. R. v. Gibson, 8 East, 107. With respect to pleas in bar, it should seem on legal principles, that the same rule with the same exception should prevail; and where the plea contains a confession in fact as in the cases of autrefois convict or pardon, there seems to be no hardship in awarding judgment, if the matter of defence be untrue, or the plea be bad in law. But where that is not the case, as in autrefois acquit, the same reasoning does not hold. An instance of this kind is at present under the consideration of the court of K. B., where upon demurrer to a plea of autrefois acquit the judgment was for the crown. The rule therefore may be considered as still uncertain. V. THE general issue, or plea of not guilty, upon which plea alone the prisoner can receive his final judgment of death. In case of an indictment of felony or treason, there can be no special justification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence against a robber on the highway, or a burglar; but he must plead the general issue, not guilty, and give this special matter in evidence. For (besides that these pleas do in effect amount to the general issue; since, if true, the prisoner is most clearly not guilty) as the facts in treason are laid to be done proditorie et contra ligeantiae suae debitum, [ 339 ] and, in felony, that the killing was done felonice; these charges, of a traiterous or felonious intent, are the points and very gist of the indictment, and must be answered directly, by the general negative, not guilty; and the jury upon the evidence will take notice of any defensive matter, and give their verdict accordingly as effectually as if it were, or could be, specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner'. WHEN the prisoner hath thus pleaded not guilty, non culpabilis, or nient culpable; which was formerly used to be abbreviated upon the minutes, thus, "non (or nient) cul.," the clerk of the assise, or clerk of the arraigns, on behalf of the crown, replies, that the prisoner is guilty, and that he is ready to prove him so. This is done by two monosyllables in the same spirit of abbreviation, "cul. prit." which signifies first that the prisoner is guilty, (cul. culpable, or culpabilis,) and then that the king is ready to prove him so; prit, praesto sum, or paratus verificare. This is therefore a replication on behalf of the king viva voce at the bar; which was formerly the course in all pleadings, as well in civil as in criminal causes. And that was done in the concisest manner: for when the pleader intended to demur, he expressed his demurrer in a single word, "judgment;" signifying that he demanded judgment, whether the writ, declaration, plea, &c. either in form or matter, were sufficiently good in law and if he meant to rest on the truth of the facts pleaded, he expressed that also in a single syllable, "prit;" signifying that he was ready to See Append. § 1. : 2 Hal. P. C. 258. prove his assertions: as may be observed from the year-books and other antient repositories of law'. By this replication the king and the prisoner are therefore at issue; for we may remember, in our strictures upon pleadings, in the preceding book', it was observed, that when the parties come to a fact, which is affirmed on one side and denied on the other, then they are said to be at issue in point of fact: which is evidently the case here, in the plea of non cul. by the prisoner; and the replication of cul. by the clerk. And we may also remember, that the usual conclusion of all affirmative pleadings, as this of cul. or guilty is, was by an averment in these words," and this he is ready to verify; et hoc paratus est verificare" which same thing is here expressed by the single word "prit." 66 How our courts came to express a matter of this importance in so odd and obscure a manner, rem tantam tam "negligenter," can hardly be pronounced with certainty. It may perhaps, however, be accounted for by supposing, that these were at first short notes, to help the memory of the clerk, and remind him what he was to reply; or else it was the short method of taking down in court, upon the minutes, the replication and averment; "cul. prit :" which afterwards the ignorance of succeeding clerks adopted for the very words to be by them spoken". BUT however it may have arisen, the joining of issue (which though now usually entered on the record", is no otherwise joined in any part of the proceedings) seems to be clearly the meaning of this obscure expression: which has puzzled our most ingenious etymologists, and is commonly understood as if the clerk of the arraigns, immediately on plea pleaded, had fixed an opprobrious name on the prisoner, by asking North's Life of Lord Guildford, 98. t See Vol. III. pag. 313. "Of this ignorance we may see daily instances in the abuse of two legal terms of antient French; one, the prologue to all proclamations, "oyez," or hear ye, which is generally pronounced most unmeaningly, "O yes;" the other, a more pardonable mistake, viz. when a jury are all sworn, the offi- X * 2 Hawk. P. C. c. 38. him, "culprit, how wilt thou be tried?" for immediately upon issue joined, it is inquired of the prisoner, by what trial he will make his innocence appear. This form has at present reference to appeals and approvements only wherein the appellee has his choice, either to try the accusation by battel or by jury. But upon indictments, since the abolition of [ 341] ordeal, there can be no other trial but by jury, per pais, or by the country and therefore, if the prisoner refuses to put himself upon the inquest in the usual form, that is, to answer that he will be tried by God and his country", if a commoner; and, if a peer, by God and his peersa; the indictment, if in treason, is taken pro confesso; and the prisoner, in cases of felony, is adjudged to stand mute, and if he perseveres in his obstinacy, shall now be convicted of the felony. : WHEN the prisoner has thus put himself upon his trial, the clerk answers in the humane language of the law, which always hopes that the party's innocence rather than his guilt may appear, "God send thee a good deliverance." And then they proceed, as soon as conveniently may be, to the trial; the manner of which will be considered at large in the next chapter. A learned author, who is very seldom mistaken in his conjectures, has observed that the proper answer is, "by God or the country," that is, either by ordeal or by jury; because the question supposes an option in the prisoner. And certainly it gives some countenance to this observation, that the trial by ordeal used formerly to be called a Keylinge, 57. State Trials passim. CHAPTER THE TWENTY-SEVENTH. OF TRIAL AND CONVICTION. THE several methods of trial and conviction of offenders established by the laws of England, were formerly more numerous than at present, through the superstition of our Saxon ancestors: who, like other northern nations, were extremely addicted to divination: a character, which Tacitus observes of the antient Germans. They therefore invented a considerable number of methods of purgation or trial, to preserve innocence from the danger of false witnesses, and in consequence of a notion that God would always interpose miraculously to vindicate the guiltless. I. THE most antient species of trial was that by ordeal: which was peculiarly distinguished by the appellation of judicium Dei; and sometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two sorts, either fire-ordeal, or waterordeal; the former being confined to persons of higher rank, the latter to the common people". Both these might be [343] performed by deputy: but the principal was to answer for the success of the trial; the deputy only venturing some 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; a de mor. Germ. 10. Wilk. 27. Tenetur se purgare is qui accusatur, per Dei judicium; scilicet per calidum ferrum, vel per aquam, pro diversitate conditionis hominum: per ferrum calidum si fuerit homo liber; per aquam, si fuerit rusticus. (Glanv. 1. 14. c.1.) e This is still expressed in that common form of speech, "of going through "fire and water to serve another." |