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V. The general issue, not guilty.

convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty (p). 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 facts, by the unanimous verdict of a jury (9). It remains therefore that I consider,

V. The general issue, or plea of not guilty (9), 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 ligeantiæ suæ 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; and the jury upon the evidence will take notice of any defensive matter, and give

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(q) See Append. 1.

(9)

(9) This rule does not extend to cases of misdemeanor ; vide unte, 335, note (5). In Rer v. Taylor, 5 D. & R. 422; 3 B. & C. 502, the indictment alleged that defendant, in the reign of the present king, kept a common gaming house. The plea stated that defendant, in the reign of the present king, was acquitted upon an indictment for keeping a common gaming-house in the reign of the late king, against the peace of our said lord the king; and averred the identity of the offences. To this there was a demurrer, concluding with a prayer of judgment of respondeat ouster. It was held by the Court of King's Bench, first, that the plea was bad, because the indictment upon which

the acquittal was founded, charged an offence committed in the reign of the late king, and defendant could not by averment shew that the offence charged in both indictments was the same; and, second, that the judgment on demurrer was final, although the demurrer concluded with a prayer of judgment of respondeat ouster. The principle upon which that decision proceeded seems to have been, that the phrase, in favorem vita, must be construed strictly, and as applicable to those cases only where the life of the party is actually in jeopardy. For the arguments and authorities upon this important point see that case; and sce 8 East, 107.

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) (10).

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 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, “cub. prit.” which signifies first that the prisoner is guilty, (cub. culpable, or culpabilis,) and then that the king is ready to prove him so; prit presto sum, or paratus verificare. This is, therefore, a replication on behalf of the king vivá 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, "prît;" 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 (1), 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.(c) 2 Hal. P. C. 258.

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() See vol. III. p. 312. (s) North's Life of Ld.Guildford, 98.

(10) On pleading this plea, the prisoner, if in irons, is entitled to have them removed, in order that he may

suffer no unnecessary pain or restraint on his trial; I Chit. Cr. L. 471.

How sur carunte carne to expres a matter of the import*** in so srdd and strcure a manner, “ren tantam ton anglagenter," can bardh be pronumunodd with certainty. li may, perhaps, bowerer, be acownted for by supposing, that there were at first start withs, to help the memory of the cerk, and remind him what he was to reply; or else it was the start 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, the joining of issue, which, though now uxually entered on the record (!), is no otherwise joined (2) 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 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 (11). This

(m) of this ignorance we may see daily instances, in the abuse of two legal wrms of ancient French, one the prologue to all proclamations, "oyer," of hear ye, which is generally pronounced most unmeaningly “ () yes :" the other, a more pardonable mistake, 11%, when a jury are all sworn, the offi.

cer bids the crier number them, for
which the word in law French is,
"countez ;" but we now hear it pro-
nounced in very good English, “count
these."

(w) See Appendix, & 1.
(1) 2 Hawk. P. C. 399.
(y) 2 Hal. P. C. 258.

(11) The learned judge's explanation of prit from presto sum, or paratus verificare, however ingenious, is certainly inconsistent both with the prin ciples and practice of special pleading After the general issue, or the plea of not guilty, there could be no replica tion, or the words parutus verificare could not possibly have been used. This plen in Latin was entered thus upon the record : Non inde est culpa. bilis, et pro bono et malo ponit se super patriam , after this the attorney general, the king's coroner, or clerk of as. wize, could only join issue by facit similater, 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 pat, written for ponit, by the clerk, as a minute that issue was joined, or ponit se super patriam ; or pñt se might be converted into prist or prest, as it is sometimes written. Cul was probably intended to denote the plea, and prit the issue; and these syllables 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

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form has at present reference to appeals and approvements only wherein the appellee has his choice, either to try the *accusation by battle or by jury. But upon indictments, since 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 (z), 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 (12).

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

(2) 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

judicium Dei. But it should seem, that
when the question gives the prisoner an
option, his answer must be positive ;
and not in the disjunctive, which re-
turns the option back to the prosecutor.

(a) Keylinge, 57; State Trials,
passim.

(6) Stat. 12 Geo. III. c. 20.

the ignorant part of the audience to suppose that cul. prit. was an appellation given to the prisoner. As a confirmation of the conjecture that prit is a corruption of pott., the clerk of ar. raigns at this day, immediately after the arraignment, writes upon the indict. ment over the name of the prisoner, puts. 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 judg. ment, that was a demurrer; if prist, that was an issue to the country." Life of Lord Keeper North, 98.-Ch.

(12) By 7 & 8 Geo. IV. c. 28, § 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 pri-
soner 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 misdemeanor, 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 fit, to order the proper
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 ac-
tually pleaded the same; vide ante
324, note (5).

may appear, “ God send thee a good deliverance” (13). 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.

(13) This is now omitted in prac. tice, as is also the form of asking the

prisoner how he will be tried. See the last note.

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