'ore an acquittal on an appeal is a good bar to an indictment on the same offence And so also was an acquittal on an indictment a good bar to an appeal, by the common law (k): and therefore, in favour of appeals, a general practice was introduced, not to try any person on an indictment of homicide, till after the year and day, within which appeals may be brought were past; by which time it often happened that the witnesses died, or the whole was forgotten. To remedy which inconvenience, the [*336] statute 3 Hen. VII. c. 1. enacts, that *indictments shall be proceeded on, immediately, at the king's suit, for the death of a man, without waiting for bringing an appeal; and that the plea of autrefoits acquit on an indictment, shall be no bar to the prosecuting of any appeal.

2. Secondly, the plea of autrefoits convict (9), or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime (1). Hereupon it has been held, that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment, of murder; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. It is to be observed, that the pleas of autrefoits acquit and autrefoits convict, or a former acquittal, and former conviction, must be upon a prosecution for the same identical act and crime. But the case is otherwise, in

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3. Thirdly, the plea of autrefoits attaint, or a former attainder; which is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or heretofore by abjuration; and whether upon an appeal or an indictment: he may plead such attainder in bar to any subsequent indictment or appeal, for the same or for any other felony (m). And this because, generally, such proceeding on a second prosecution cannot be to any purpose: for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he hath forfeited all that he had so that it is absurd and superfluous to endeavour to attaint him a second time. But to this general rule, however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex. As. [*337] 1. Where the former attainder is reversed for error, for then it is the same as if it had never been. And the same reason holds, where the attainder is reversed by parliament, or the judgment vacated by the king's pardon, with regard to felonies committed afterwards. 2. Where the attainder was upon indictment, such attainder is no bar to an appeal: for the prior sentence is pardonable by the king; and if that might be pleaded in bar of the appeal, the king might in the end defeat the suit of the subject, by suffering the prior sentence to stop the prosecution of a

(k) 2 Hawk. P. C. 373

(2) 2 Hawk. P. C. 377.

apon any evidence that might have been adduced, his acquittal on that indictment may be successfully pleaded to a second indictment; and it is immaterial whether the proper evidence was adduced at the trial of the first indictment or not. Id. ibid. A prisoner indicted for felony may plead not guilty after his special

(m) Ibid. 375.

plea of autrefois acquit has been found against him. Rex v. Welch, Car. Cr. L. 56.

(9) As to this plea in general, see I Chit. C. L. 462, 3. 2 Hale, 251 to 255. Hawk b. 2. c. 36. s. 10 to 17. Burn J. Indictment XI.

second, and then, when the time of appealing is elapsed, granting the delinquent a pardon. 3. An attainder in felony is no bar to an indictment of treason because not only the judgment and manner of death are differen.. but the forfeiture is more extensive, and the land goes to different persons 4. Where a person attainted of one felony, is afterwards indicted as principal in another, to which there are also accessaries, prosecuted at the same time; in this case it is held, that the plea of autrefoits attaint is no bar, but he shall be compelled to take his trial, for the sake of public justice; because the accessaries to such second felony cannot be convicted till after the conviction of the principal (n). And from these instances we may collect that a plea of autrefoits attaint is never good, but when a second trial would be quite superfluous (o) (10).

4. Lastly, a pardon may be pleaded in bar; as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict. There is one advantage that at tends pleading a pardon in bar, or in arrest of judgment, before sentence is past; 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 parlia ment. But as the title of pardons is applicable to other stages of prosecu tion; and they have their respective force and efficacy, as well after as before conviction, outlawry, or attainder; I shall there- [*338| fore reserve the more minute considerations of them, till I have gone through every other title except only that of execution.

Before I conclude this head of special pleas in bar, it will be necessary once 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 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 reipublicæ ut sit finis litium: yet in criminal prosecutions in favorem vitae, 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 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 (11). It remains therefore that I consider, V. The general issue, or plea of not guilty (q), upon which plea alone

(n) Poph. 107.

(0) Staund. P. C. 107.

(10) By the 7 and 8 G. IV. c. 28, s. 4, it is enacted that no plea setting forth any attainder, shall be pleaded in bar of any indictment, anless the attainder be for the same offence as that charged in the indictment: by which nactment the plea of autrefois attaint seems o be at an end.

In New-York there is no attainder.

(p) 2 Hal. P. C. 239.
(q) See Appendix, ◊ 1,

(11) But this is confined to cases of felony, a defendant having pleaded in bar in all cases of misdemeanor, is precluded from the bene fit of the plea of not guilty, if the plea of bar should be found insufficient, 8 East, 107. 1 M. & S. 184. 3 B. & C. 502. 2 B. & C. 512 unless on demurrer. Term. P. C. 189. 6 East 583. 602. See ante, 335, note 8.

the prisoner can receive his final judgment of death. In case of an indictmen 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 burglaı; 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 [39] facts in treason are *laid to be done proditorie et contra ligeantiae suae 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 nega. uve not guilty; and the jury upon the evidence will take notice of any aefc asive matter, and give there verdict accordingly, as effectually as if it wero, or could be, specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner (r) (12).

When the prisoner hath thus plead d 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 praesto 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 sylla ble, "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 (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 [*340] 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."

How our courts came to express a matter of this importance in so odd

(r) 2 Hal. P. C. 258.

(a) North's Life of Lord Guildford, 98

(12) In cases of indictments or informations for misdemeanors, the above rule, as to plead Jag the general issue, does not apply with the same degree of strictness; for there are some cases where a special plea is not only allow able, 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 plead

(t) See Book III. page 312

ing, shew that he is entitled to the benent of that exception, or proviso; and there are many pleas of this description in the ancient en tries. 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 repai highways and bridges. As to these, ang a general, 1 Chit. C L. 473 to 457

and obscure a manner, 66 rem tantam tam negligenter," can hardly be pro nounced 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 aver· ment; "cul. prît:" which afterwards the ignorance of succeeding clerka 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 (v), 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 (13). This form has at present reference to appeals and approvements only wherein the appellee has his choice, either to try the *ac- [*341] cusation 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 (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 (b) be convicted of the felony (14).

(u) of this ignorance we may see daily instances 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, viz. when a jury are all sworn, the officer bids the cirer number them, for which the word in law-french is "countez;" but we now hear it proounced in very good English, "count these." (w) See Appendix, ◊ 1. (x) 2 Hawk. P. C. 399.

(13) Mr. Christian has the following note on this explanation :-The learned judge's explanation of prit from praesto sum, or paratus verificare, however ingenious, is certainly in consistent both with the principles and practice of special pleading. After the general issue, or the plea of not guilty, there could be no replication; or the words paratus verificare could not possibly have been used. This plea in Latin was entered thus upon the record: Non inde est culpabilis, et pro bono et malo ponit se super 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 hink that prit was an easy corruption of pnt. written for ponit by the clerk, as a minute that ssue was joined, or ponit se super patriam; or ent 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;

VOL. II.

84

ken 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 posi
tive; 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.

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 the ignorant part of the audience to suppose that culprit was an appellation given to the prisoner. As a confirmation of the con jecture 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, pmts. 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.

(14) By 7 and 8 G. IV. c. 28, s. 1, t is en acted, that if any person, not having privilege of peerage, being arraigned upon any indictthereto a plea, of "not guilty," he shall, by ment for treason, felony, or piracy, shall plead such plea, without any further form, he deem

When the prisoner has thus put himself upon his trial, the clerk answer 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 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 (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 ancient (b) 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 (c), either fireordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people (d). 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 [*343] for friendship (e). Fire-ordeal was performed either by taking

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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 redhot 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 (f).

Water-ordeal was performed, either by plunging the bare arm up to the

(a) de mor. Germ. 10.

(b) LL. Inae. 3, c. 77 (c) Mirr. c. 3,

23.

(d) Tenetur se purgare is qui accusatur, per Dei udicium; scilicet per calidum ferrum, vel per aquam, pro diversitate conditionis hominum: per ferrum

ed to have put himself upon the country for rial, and the court shall, in the usual manner, order a jury for the trial of such person ac"ordingly. In consequence of this wise enactment, the absurd ceremony of asking a prioner how he will be tried, has been wholly discontinued. By s. 2 of the same statute it is enacted, that if any person being arraigned apon, or charged with any indictment for treaBOL felony, piracy, or misdemeanor shall

calidum, si fuerit homo liber; per aquam, si fuent rusticus. (Glanv. 1. 14, c. 1.)

(e) This is still expressed in that commor form of speech, "of going through fire and water to serve another."

(f) Tho. Rudborne Hist. maj. Winton. I. 4, e. 1.

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 se 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 actually pleaded the same. Vide ante, 324. note (9), the law in England; note 8, the law in New-York.