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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 (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 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
(9) This rule does not extend to the acquittal was founded, charged an cases of misdemeanor ; vide unte, 335, offence committed in the reign of the note (5). In Rer v. Taylor, 5 D. & R. late king, and defendant could not by 422; 3 B. & C. 502, the indictment averment shew that the offence charged alleged that defendant, in the reign of in both indictments was the same; and, the present king, kept a common gaming- second, that the judgment on demurrer house. The plea stated that defendant, was final, although the demurrer conin the reign of the present king, was cluded with a prayer of judgment of acquitted upon an indictment for keep- respondeat ouster. The principle upon ing a common gaming-house in the which that decision proceeded seems to reign of the late king, against the peace have been, that the phrase, in furorem of our said lord the king; and averred vite, must be construed strictly, and as the identity of the offences. To this applicable to those cases only where the there was a demurrer, concluding with life of the party is actually in jeopardy. a prayer of judgment of respondeat For the arguments and authorities upon
It was held by the Court of this important point see that case; and King's Bench, first, that the plea was sce 8 East, 107. bad, because the indictment upon which
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
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 ((), 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.” (r) 2 Hal. P. C. 258.
(1) See vol. III. p. 312. (s) North's Life of Ld.Guildford, 98.
(10) On pleading this plea, the pri- suffer no unnecessary pain or restraint soner, if in irons, is entitled to have on his trial; I Chit. Cr. L. 471. them removed, in order that he may
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, the joining of issue, which, though now usually entered on the record (w), is no otherwise joined (x) 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 (11). This
(u) Of this ignorance we may see daily instances, in the abuse of two legal terms of ancient 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, vis. when a jury are all sworn, the offi
cer bids the crier number them, for
(w) See Appendix, 1.
(11) The learned judge's explana- at the end of this book.) If then 1 tion of prít from præsto sum, or paratus might be allowed to indulge a conjecverificare, however ingenious, is cer- ture of my own, I should think that prit tainly inconsistent both with the prin- was an easy corruption of pat. written ciples and practice of special pleading. for ponit, by the clerk, as a minute that After the general issue, or the plea of issue was joined, or ponit se super pa. not guilty, there could be no replica- triam; or pñt se might be converted tion; or the words parutus verificare into prist or prest, as it is sometimes could not possibly have been used. written. Cul was probably intended to This plea in Latin was entered thus denote the plea, and prit the issue ; and upon the record : Non inde est culpa- these syllables being pronounced aloud bilis, et pro bono et malo ponit se super by the clerk to give the court and pripatriam ; after this the attorney gene- soner an opportunity of hearing the acral, the king's coroner, or clerk of as- curacy of the minute, and being immesize, could only join issue by facit simi- diately followed by the question, How liter, or he doth the like. (See App. p. 3, wilt thou be tried ? naturally induced
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 judicium Dei. But it should seem, that seldom mistaken in his conjectures, has when the question gives the prisoner an observed that the proper answer is, “by option, his answer must be positive ; God or the country,” that is, either by and not in the disjunctive, which reordeal or by jury; because the question turns the option back to the prosecutor. supposes an option in the prisoner. (a) Keylinge, 57; State Trials, And certainly it gives some counte- passim. nance to this observation, that the trial (b) Stat. 12 Geo. III. c. 20. by ordeal used formerly to be called
the ignorant part of the audience to be deemed to have put himself upon the suppose that cul. prit. was an appella- country for trial, and the court shall, tion given to the prisoner. As a con- in the usual manner, order a jury for firmation of the conjecture that prit is the trial of such person accordingly. a corruption of pott., the clerk of ar- In consequence of this wise enactment, raigns at this day, immediately after the the absurd ceremony of asking a priarraignment, writes upon the indict- soner how he will be tried, has been ment over the name of the prisoner, wholly discontinued. By sect. 2 of the puts. And Roger North informs us, same statute it is enacted, that if any that in ancient times, when pleadings in person being arraigned upon, orcharged the courts were ore tenus, “if a ser- with any indictment for treason, felony, jeant in the common pleas said judg- piracy, or misdemeanor, shall stand ment, that was a demurrer; if prist, that mute, or will not answer directly, to the was an issue to the country." Life of indictment or information, in every such Lord Keeper North, 98.—CH.
case it shall be lawful for the court, if (12) By 7 & 8 Geo. IV. c. 28, § 1, it shall so think fit, to order the proper it is enacted, that if any person, not
officer to enter a plea of “not guilty" having privilege of peerage, being ar- on behalf of such person; and the plea raigned upon any indictment for trea- so entered shall have the same force son, felony, or piracy, shall plead and effect, as if such person had acthereto a plea of “ not guilty,” he shall, tually pleaded the same; vide ante by such plea, without any further form, 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. prisoner how he will be tried. See the tice, as is also the form of asking the last note.