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.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 fact, by the unanimous verdict of a jury. It remains therefore that I consider,

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 ligeantiæ suæ debitum, 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, præsto sum, or paratus verificare. This is therefore a replication on behalf of the king viva

P 2 Hal. P. C. 239. ¶ See Append. § 1. r 2 Hal. P. C. 258.

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. 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 “ prît."

66

rem tantam

How our courts came to express a matter of this importance in so odd and obscure a manner, 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."

s North's life of lord Guildford. 98.

t See Vol. III. pag. 287. 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 pro

VOL. IV.-PART II.

nounced most unmeaningly "O yes:" the other, a more pardonable mistake, viz. when a jury are all sworn, the officer bids the crier number them, for which the word in law-french is, "countez;" but we now hear it pronounced in very good English,"count these,"

E e

X

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; 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 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 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," if a commoner; and, if a peer, by God and his peers, 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.

w See Appendix, § 1. x 2 Hawk. P. C. 399. y 2 Hal. P. C. 258. 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 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 returns the option back to the prosecutor.

a Keylinge, 57. State Trials, passim.

b Stat. 12 Geo. III. c. 20.

CHAP. XXVII.

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 ancient 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 water-ordeal; the former being confined to persons of higher rank, the latter to the common people." Both these might be 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.e 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; or else by walking barefoot, and blindfold, over nine red-hot plowshares, 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

a de mor. Germ. 10.

b LL. Inc. 3. c. 77. c Mirr. c. 3. § 23.

a Tenetur se purgare is qui

calidum si fuerit homo liber; per aquam, si fuerit rusticus. Glanv. l. 14. c. 1.

e This is still expressed in accusatur, per Dei judicium; that common form of speech, "of going through fire and per aquam, pro diversitate con- water to serve another." ditionis hominum: per ferrum

scilicet per calidum ferrum, vel

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 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 evi dence of his guilt; but, if he sunk, he was acquitted. It is easy to trace out the traditional relics of this waterordeal, 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.

i

And indeed this purgation by ordeal seems to have been very ancient, and very universal, in the times of superstitious barbarity. It was known to the ancient 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 mani fest 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 waterordeal, 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 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