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cution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arrest of judgment, before sentence is passed, which gives it by much the preference to pleading it after sentence or attainder. This is, that by stopping the judgment it stops the attainder and prevents the corruption of the blood, which when once corrupted by attainder cannot afterwards be restored otherwise than by act of parliament. But, as the title of pardons U applicable to other stages of prosecution, and they have their respective force *3381 and efficacy as well after as before conviction, outlawry, or *attainder, J I shall therefore reserve the more minute consideration of them till I have gone through every other title except '^nly that of execution.

Before 1 conclude this head of special pleas in bar, it will be necessary onco 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 reipublica ut sit finis litium; yet in criminal prosecutions in favorem vita, 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 oourt, 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.' It remains, therefore, that I consider,—

V. The general issue, or plea of not guilty,(q) 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 •3391 P"soner ifi most clearly not guilty) as the facts in treason are *laid to ■J be done proditorie et contra ligeantias sua debitum, and, in felony, that the killing was done felonice; these charges of a traitorous or felonious intent are the points and very gist of the indictment, and must be answered, directly, by the general negative, not guilty j and the juiy 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.(r)'

When the prisoner hath thus pleaded not guilty, non culpabilis, or nient cui fable, which was formerly used to be abbreviated upon the minutes thus, " non

(») 2 Hal. P. C 239. (f) See Appendix, jj 1. f) 2 Hal. P. C 269.

1 But this is confined to cases of felony; a defendant having pleaded in bar in all cases of misdemeanour is precluded from the benefit of the plea of not guilty if the plea of bar should be found insufficient. 8 East, 107.—Christian.

1 M. & S. 184. 3 B. & C. 502. 2 B. & C. 512, (unless on demurrer.) Term, P. C. 189. 6 East, 583, 602.—Chittt.

* In cases of indictments or informations for misdemeanours, the above rule, as to plead ing the general issue, does not apply with the same degree of strictness; for there are some cases where a special plea is not only allowable, but even requisite. Thus, if the defendant fall within any exception or proviso which is not contained in the purview of the statute creating the offence, he may, by pleading, show that he is entitled to the benefit of that exception or proviso; and. there are many pleas of this description in the ancient entries. 2 Leach, 606. But the principal, and indeed almost the only, cases in which special pleas to the merits are necessary, are in the case of indictments for neglecting to repair highways and bridges. As to these, sef n general, 1 Chitt. C. L. 473 so 477.—Chittt.

(or aren't) cul.," ihe clerk of the assize, 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 cuU pabitis,) and then, that the king is ready to prove him so, prit, prcesto 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 prove his assertions: as may be observed from the year-books and other ancient repositories of law.(s) 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,(t) 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 r*o±o *of fact: which is evidently the case here in the plea of non cul. by the L 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."

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, (u)

But, however it may have arisen, tho joining of issue (which, though now usually entered on the record,(u>) is no otherwise joined) in any part of the proceedings) seems to be clearly the meaning of this obscure expression ;(y) 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 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

(•> North's Life of Lord Guildford. 98. sworn, the officer bide the crier number them, for which the

(•) See book ilL ptige 312. word in law-French is *'counter;" but we now hear it pro

(**) Of this ignorance we may see daily instances in the nounced in very good English, Mcount these."

abuse of two legal terms of ancient French; one, the pro- e) See Appendix, 3 1.

logne to all proclamations," oycz," or hear ye, which is gene- C) 2 Hawk. P. C. 399.

rally pronounced, most unmeaningly, "0 yoe;" the other, (r) 2 Hal. P. C. 258.

a more pardonable mistake,—Ariz., when a jury are all

• The learned judge's explanation of print, from prcesto sum, or paratus verificare, however ingenious, is certainly inconsistent both with the principles and practice of special pleading. After the general issue, or the plea of not guilty, there could be no repli cation, or the words paralus verificare could not possibly have been used. This plea in Latin was entered thus upon the record:—Non inde est culpaiiUs, et pro bono et malo ponit se riper patriam: after this the attorney-general, the king's coroner, or clerk of assize could only join issue by facit similiter, or he doth the like. See App. p. 3, at the end of this book. If, then, I might be allowed to indulge a conjecture of my own, I should think that prit was an easy corruption of pni. written for ponit by the clerk, as a minute that issue was joined, or ponit se super patriam; or pnt se might be converted into priest or priest, as it is sometimes written. t was probably intended to denote the plea, and prit the issue; and these I 3 tiables being pronounced aloud by the clerk to give the court and prisoner an opportunity of hearing the accuracy of the minute, and being immediately followed by the question, How wilt thou be tried? naturally induced the ignorant part of the audience to suppose that culprit was an appellation given to the prisoner. As a Cop

to appeals and approvements only wherein the appellee has his choice either to *3411 fay the *accusation by battel or by jury. But upon indictments, since J the abolition of 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 the country,(2) if a commoner; and, if a peer, by God and his peers;{a) 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(6) be convicted of the felony.10

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.

CHAPTER XXTII

OF TRIAL AND CONVICTION.

•3421 *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.(a) 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(o) 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,(e) either j?re-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common

(•) A learned author, who la Tery seldom mistaken in his the disjunctive, which returns the option back to the proev

conjectures, has observed that the proper answer la "by cutor.

Owl or the country;" that is, either by ordeal or by jury; (*) Keylinge, 57. State Trials, pom'nt.

because the question supposes an option in the prisoner. (*) Stat. 12 Geo. III. c. 20.

And certainly it gives some countenance to this observation (a) Dr. Mar. Qerm. 10.

that the trial by ordeal used formerly to be called judicium (*) LL. Jnte. 3, c 77

Dei. But it should seem that when the question gives the (•) Mirr. c. 3, \ 23.

prisoner an option his answer must be positive, and not in

firmation of the conjecture that prit is a corruption for pnt, the clerk of the arraigns at this day, immediately after the arraignment, writes upon the indictment, over the name of the prisoner, pnts. And Roger North informs us that in ancient times, when pleadings in the courts were ore tenus, "if a Serjeant in the Common Pleas said judgment, that was a demurrer; if prist, that was an issue to the country." Life of Lord-Keeper North, 98.—Christian.

10 By 7 & 8 Geo. IV. c. 28, s. 1, it is enacted that if any person not having privilege of peerage, being arraigned upon any indictment for treason, felony, or piracy, shall plead thereto a plea of "not guilty," he shall by such plea, without any further form, be deemed to have put himself upon the country for trial, and the court shall, in the usual manner, order a jury for the trial of such person accordingly. In consequence of this wise enactment, the absurd ceremony of asking a prisoner how he will be tried has been wholly discontinued. By sect. 2 of the same statute, it is enacted that if any person being arraigned upon or charged with any indictment for treason, felony, piracy, or misdemeanour shall stand mute, or will not answer directly to the indictment or information, in every such case it shall be lawful for the court, if it shall so think Jit, to order the propel officer to enter a plea of " not guilty" on behalf of such person ; and the plea so entered shall have the same force and effect as if such person had actually pleaded the same.— Ohitty.

people.(<Z) Both these might be performed by deputy; but the principal was to answer for the success of the trial; the deputy only venturing some corporai pain, for hire, or perhaps for friendship.(e) Fire-ordeal was *perfornied r 1*343 either by taking up in the hand, unhurt, a piece of red-hot iron of one, L two, or three pounds' weight; or else by walking barefoot, and blindfold, over nine red-hot ploughshares laid lengthwise at unequal distances; and if the party escaped being hurt he was adjudged innocent; but if it happened otherwise, as without collusion it usually did, he was then condemned as guilty. However, by this latter method, queen Emma, the mother of Edward the Confessor, is mentioned to have cleared her character when suspected of familiarity with Alwyn, bishop of "Winches „r.(/)

Water-ordeal was performed either by plunging the bare arm up to the elbow iu boiling water, and escaping unhurt thereby, or by casting the person suspected into a river or pond of cold water; and if he floated therein without any action of swimming, it was deemed an evidence of his guilt, but if he sunk ho was acquitted. It is easy to trace out the traditional relics of this water-ordeal in the ignorant barbarity still practised in many countries to discover witches by casting them into a pool of water and drowning them to prove their innocence. And in the Eastern empire the fire-ordeal was used to the same purpose by the emperor Theodore Lascaris; who, attributing his sickness to magic, caused all those whom he suspected to handle the hot iron: thus joining (as has been well remarked)^) to the most dubious crime in the world the most dubious proof of innocence.

And, indeed, this purgation by ordeal seems to have been very antient and very universal in the times of superstitious barbarity. It was known to the antient Greeks: for, in the *Antigone of Sophocles,(A) a person, sus- r*Q44 pected by Creon of a misdemeanour, declares himself ready "to handle hot iron and to walk over fire," in order to manifest his innocence, which, the scholiast tells us, was then a very usual purgation. And Grotius(i) gives us many instances of water-ordeal in Bithynia, Sardinia, and other places. There is also a very peculiar species of water-ordeal said to prevail among the Indians on the coast of Malabar, where a person accused of any enormous crime is obliged to swim over a large river abounding with crocodiles, and if he escapes unhurt he is reputed innocent. As, in Siam, besides the usual methods of fire and water ordeal, both parties are sometimes exposed to the fury of a tiger let loose for that purpose, and if the beast spare either, that person is accounted innocent; if neither, both are held to be guilty; but if he spares both, the trial is incomplete, and they proceed to a more certain criterion.(A:)

One cannot but be astonished at the folly and impiety of pronouncing a man guilty unless he was cleared by a miracle, and of expecting that all the powers of nature should be suspended by an immediate interposition of Providence to save the innocent whenever it was presumptuously required. And yet in England so late as king John's time wo find grants to the bishops and clergy to use the judicium ferri, aquce, et ignis.(l) And, both in England and Sweden, the clergj presided at this trial, and it was only performed in the churches or in other consecrated ground; for which Stiernhook(m) gives the reason: "nondefuu Mis operce et laboris pretium; semper enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat." But, to give it its due praise, we find the canon law very earh declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil, "cum sit contra prxceptum Domini, non tentabis Dominum Deum tuum."{n) Upon this authority, though the canons *themselves were of no validity r*9.i^ in England, it was thought proper (as had been done in Denmark above L a century before)(o) to disuse and abolish this trial entirely in our courts of jut

(*) Ttnetur se purgare is qui accusatur, per Dei judicium; (*) V. 270.

talict-t per calidum ffrrum, vel per aquam, pro diversiiate M On Numb, T, 17.

onditionis hominum: per ferrum calidum, si fuerit homo (*) Mod. Un. Hist. Til. 266.

Uber;per ax/uam. si fuerit rusticus. Ql.inT. Z. 14, e, 1. f1) Spelm. Glow. 486.

(•) This is still expressed in that common form of speech, (•) I>< jure Sueonum, L 1, c. 6.

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tice by an act of parliament, in 3 Ben. m., according to Sir Edward Coke,(j>) or rather by an order of the king in council.(y)

II. Another species of purgation somewhat similar to the former, but probably sprung from a presumptuous abuse of revelation in the ages of dark superstition, was the corsned, or morsel of execration: being a piece of cheese or bread of about an ounce in weight, which was consecrated with a form of exorcism; desiring of the Almighty that it might cause convulsions and paleness, and find no passage, if the man was really guilty; but might turn to health and nourishmerit if he was innocent ;(r) as the water of jealousy among the Jews(s) was, by God's special appointment, to cause the belly to swell and the thigh to rot, if the woman was guilty of adultery. This corsned /as then given to the suspected person, who at the same time also received the holy sacrament;(f) if, indeed, the corsned was not, as some have suspected, the sacramental bread itself, till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us that Godwin, earl of Kent, in the reign of king Edward the Confessor, abjuring the death of the king's brother, at last appealed to his corsned, "per buccellam deglutiendam abjuravit,''(u) which stuck in his throat and killed him. This custom has long since been gradually abolished, though the remembrance of it still persists in certain phrases of abjuration retained among the common people.(tc) *3461 *However, we cannot but remark, that though in European countries

J this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And therefore we shall not be surprised to find that in the kingdom of Pegu there still subsists a trial by the corsned very similar to that of our ancestors, only substituting raw rice instead of bread.(a;) And in the kingdom of Monomotapa they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree endued with an emetic quality, which, being do masticated, is then infused in water which is given the defendant to drink. If His stomach rejects it he is condemned; if it stays with him he is absolved, unless the plaintiff will drink some of the same water; and if it stays with him also the suit is left undetermined.^)

These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which still remains in force, though very rarely in use, owes its introduction among us to the princes of the Norman line. And that is,

III. The trial by battel,1 duel, or single combat; which was another species of presumptuous appeals to Providence, under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was fully discussed in the preceding bookjQr) to which I have only to add that the trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal solemnity as that on its writ of right; but with this difference, that there each party might hire a champion, but nere they must fight in their proper persons. And therefore, if

the 'appellant or approver be a woman, a priest, an infant, or of the

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age of sixty, or lame, or blind, he or she may counterplead and refuse

the wager of battel, and compel the appellee to put himself upon the country Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and

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