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 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 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 be convicted of the felony. b 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. z 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; C de mor. Germ. 10. b LL. Inae. c. 77. Wilk. 27. Tenetur se purgare is qui accusatur, conditionis hominum: per ferrum calidum si fuerit homo liber; per aquam, si fuerit rusticus. (Glanv. 1. 14. c.1.) This is still expressed in that common form of speech, "of going through "fire and water to serve another." or else by walking barefoot, and blind-fold, 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 Winchester'. WATER-ordeal was performed, either by plunging the bare arm up to the elbow in boiling water, and escaping unhurt therefrom; 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, he 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. (1) AND indeed this purgation by ordeal seems to have been very antient and very universal, in the times of superstitious f Tho. Rudborne, Hist. maj. Winton. Sp. L. b. 12. c. 5. 1. 4. c. 1. (1) The word ordeal according to Meyer, is from the same original, as oordeel in Dutch, and urtheil in German, and signified judgment; so that the term was used κа?' ¿¿oxŋ to denominate the highest and most respected form of trial. He deduces the practice from a still earlier mode of trying doubtful offences by lots, which itself is referable to that partiality for auspicia and sortes mentioned by Tacitus, as remarkable among the antient Germans, and which, with many other similar feelings and habits, they carried with them, and retained under modified forms after their conversion to Christianity. Meyer mentions two instances of reputed witches being submitted by popular superstition to the trial by fire or water in Flanders, so lately as 1815 and 1816. Vol. I. 315,322. barbarity. It was known to the antient Greeks: for in the Antigone of Sophocles", a person suspected by Creon of a misdemesnor, 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 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 tyger let loose for that purpose; and, if the beast spares 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 K. 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, we find grants to the bishops and clergy to use the judicium ferri, aquae, et ignis'. And, both in England and Sweden, the clergy presided at this trial, and it was only performed in the churches or in other consecrated ground; for which Stiernhook gives the reason; 66 non defuit illis operae et laboris "pretium; semper enim ab ejusmodi judicio aliquid lucri sacer"dotibus obveniebat." But, to give it it's due praise, we find the canon law very early declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil, "cum sit "contra praeceptum Domini, non tentabis Dominum Deum "tuum"." Upon this authority, though the canons themselves were of no validity in England, it was thought proper m h v.264. On Numb. v.17. * Mod. Univ. Hist. vii. 266. 1 Spelm. Gloss. 435. De jure Sueonum, l. 1. c. 8. "Decret. part 2. caus. 2. qu. 5. dist.7. Decretal. lib. 3. tit. 50. c. 9. & Gloss. ibid. |