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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. prît:” 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 (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 himselt upon the inquest in the usual form, that is, to answer that he will be tried by God and the country (2), 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 (14).
(u) or this ignorance we may see daily instances ken in his conjectures, has observed that the proper in the abuse of two legal terms of ancient French; answer is, " by God or the country," that is, either one, the prologue to all proclamations, “oyez," or by ordeal or by jury; because the question supposes hear ye, which is generally pronounced most un- an option in the prisoner. And certainly it gives meaningly, “O) yes ;" the other, a more pardonable some countenance to this observation, that the trial mistake, viz. when a jury are all sworn, the officer by ordeal used formerly to be called judicium Dei. bids the cirer nurnber them, for which the word in But it should seem, that when the question gives law-french is "countez;" but we now hear it pro- the prisoner an option, his answer must be posinounced in very good English, “count these.' tive; and not in the disjunctive, which returns the (20) See Appendix, o 1.
option back to the prosecutor.
(a) Keylinge, 57. State Trials, passim. (y) 2 Hal. P. C. 258.
(6) Stat. 12 Geo. III. c. 20. (2) A learned author, who is very seldorn mista.
(3) 2 llawk. P. C. 399.
(13) Mr. Christian has the following note and these syllables being pronounced aloud on this explanation :-The learned judge's ex. by the clerk to give the court and prisoner an planation of prit from praesto sum, or paratus opportunity of hearing the accuracy of the verificare, however ingenious, is certainly in minute, and being immediately followed by the consistent both with the principles and prac. question, How wilt thou be tried ? naturally tice of special pleading. After the general induced the ignorant part of the audience to issue, or the plea of not guilly, there could be suppose that culprit was an appellation given no replication ; or the words paratus verificare to the prisoner. As a confirmation of the con could not possibly have been used. This plea jecture that prit is a corruption for pne, the in Latin was entered thus upon the record : clerk of the arraigns at this day, immediately Non inde est culpabilis, et pro bono et malo ponit after the arraignment, writes upon the indict. se super patriam ; after this the attorney-gene- ment, over the name of the prisoner, pnts. ral, the king's coroner, or clerk of assize, And Roger North informs us, that in ancient could only join issue by facit similiter, or he times, when pleadings in the courts were ore doth the like. (See App. p. 3. at the end of tenus, “ if a serjeant in the common pleas said this book.) If then I might be allowed to judgment, that was a demurrer; if prist, that indulge a conjecture of my own, I should was an issue to the country."-Lise of Lord think that prit was an easy corruption of prt. Keeper North, 98. written for ponit by the clerk, as a minute that (14) By 7 and 8 G. IV. c. 28, s. 1, it is enissue was joined, or ponit se super patriam ; or acted, that if any person, not having privilege pri se might be converted into prist or prest,
of peerage, being arraigned upon any indictas it is sometimes written. Cul'was probably thereto a plea, of “not guilty," he shall, by
ment for treason, felony, or piracy, shall plead intended to denote the plea, and prit the issue; such plea, without any further form, be deemVol. II.
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 rial ; the manner of which will be considered at large in the next chapter.
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 (6) 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
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.
calidum, si fuerit homo liber ; per aquam, si fuerit (6) LL. Inae. 3, c. 77.
rusticus. (Glanv. l. 14, c. 1.) (c) Mirr. c. 3, 6 23.
(e) This is still expressed in that common form of (d) Tenetur se purgare is qui accusatur, per Dei speech, "of going through fire and water to serve judicium; scilicet per calidum ferrum, vel per aquam,
another." pro diversitate conditionis hominum : per ferrum (f) Tho. Rudborne Hist. maj. Winton. I. 4, c. 1. ed to have put himself upon the country for stand mute, or will not answer directly, to the trial, and the court shall, in the usual inanner, indictment or information, in every such case order a jury for the trial of such person ac. it shall be lawful for the court, if it shall so cordingly. In consequence of this wise en- think fil, to order the proper officer to enter a aclment, the absurd ceremony of asking a pri- plea of " not guilty" on behalf of such personer how he will be tried, has been wholly son ; and the plea so entered shall have the discontinued. By s. 2 of the same statute it same force and effect, as if such person had is enacted, that if any person being arraigned actually pleaded the same. Vide ante, 324, upon, or charged with any indictment for trea. note (9), ihe law in England ; note 8, ibe law son, felony, piracy, or misdemeanor, shall in New York.
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 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) (g) to the most dubious crime in the world, the most dubious proof of innocence. 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 [*344) (h), a person, suspected by Creon of a misdemeanor, declares himself ready “to handle hot iron, and to walk over fire,” in order to manifest his innocence ; which, the scholiast tell us, was then a very usual purgation. And Grotius (i) 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 spare either, that person is accounted innocent; is 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 (ne) gives the reason ; "non defuit illis operae et laboris pretium ; semper enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat.” But, to give it its 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 (n).” Upon this authority, though the canons *themselves were of [*345] no validity in England, it was thought proper (as had been done in Denmark above a century before) (o) to disuse and abolish this trial entirely in our courts of justice, by an act of parliament in 3 Hen. III. according to sir Edward Coke (p), or rather by an order of the king in coun
II. Another species of purgation, somewhat similar to the former, but (g) Sp. L. b. 12, c. 5.
(n) Decret. part 2, cous. 3, qu. 5, dist. 7. Decretal. Chi v. 270.
lib. 3, tit. 50, c. 9, & Gloss. ibid.
(0) Mod. Un. Hist. xxxii. 105.
(9) ! Rym. Foed. 228. Spelm. Gloss. 326. 3 Pryn. Rec. Append. 20. Seld. Eadm. fol. 48.
(i) On Nurnb. v. 17.
probably sprung from a presumptuous abuse of revelation in the ages of dark superstition, was the corsned or morsel of execration : being a piece of cheese or bread, of about an ounce in weight, which was consecrated with a form of exorcism ; desiring of the Almighty that it might cause convulsions and paleness, and find no passage if the man was really guilty; but might turn to health and nourishment, if he was innocent (r): as the water of jealousy among the Jews (s) was, by God's special appointment, to cause the belly to swell
, and the thigh to rot, if the woman was guilty of adultery. This corsned was then given to the suspected person, who at the same time also received the holy sacrament (t): if indeed the corsned was not, as some have suspected, the sacramental bread itself ; till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us, that Godwin earl of Kent, in the reign of king Edward the Confessor, abjuring the death of the king's brother, at last appealed to his corsned,“ per buccellam deglutiendam abjuravit (u),” which stuck in his throat and killed him. This custom has long since been gradually abolished, though the remembrance of it still subsists in certain phrases of abjuration retained
among the common people (w). [*346] *However, we cannot but remark, that though in European
countries this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And therefore we shall not be surprised to find, that in the kingdom of Pegu there still subsists a trial by the corsned, very similar to that of our ancestors, only substituting raw rice instead of bread (r). And, in the kingdom of Monomotapa, they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree, endued with an emetic quality ; which, being sufficiently masticated, is then infused in water, which is given the defendant to drink. If his stomach rejects it, he is condemned: if it stays with him, he is absolved, unless the plaintiff will drink some of the same water; and, if it stays with him also, the suit is left undetermined (y).
These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which still remains in force, though very rarely in use, owes its introduction among us to the princes of the Norman line. And that is,
III. The trial by battel (1), duel, or single combat; which was another species of presumptuous appeals to Providence, under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was fully discussed in the preceding book (r): to which I have only to add, that the trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is car. ried on with equal solemnity as that on a writ of right : but with this difference, that there each party might hire a champion, but here, they (r) Spelm. G1. 439.
this morsel be my last ;" and the like. (s) Numb. ch. v.
(2) Mod. Univ. Hist. vii. 129. (1) LL. Canut. c. 6.
(y) Toid. xv. 464. (u) Ingulph.
(2) See Book III. page 337. (W) As, “I will take the sacrament upon it; may (1) This species of trial is now entirely abolished by the 59 Geo, III. c. 46. See 1 B. & A. 405; ante 316, note 20.
must fight in their proper persons. And therefore if the *ap- [*347] pellant or approver be a woman, a priest, an infant, or of the age of sixty, or lame, or blind, he or she may counterplead and refuse the wager of battel ; and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons ; nor the citizens of London, by special charter, because fighting seems foreign to their education and employment. So likewise if the crime be notorious ; as if the thief be taken with a mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel from the appellee (a); for it is unreasonable that an innocent man should stake his life against one who is already half-convicted.
The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn (). The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body : the appellant takes up the glove, and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand, and in his left the right hand of his antagonist, swears to this effect : “ Hoc audi, homo, quem per manum teneo,” de. “ Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way guilty of the said felony. So help me God, and the saints ; and this I will defend against thee by my body, as this court shall award." To which the appellant replies, holding the bible and his antagonist's hand in the same manner as the other : “ Hear this, O man, whom I hold by the hand, who callest thyself Thomas by the name of baptism, that thou art perjured ; and therefore perjured, because that thou feloniously didst murder my *father, Wil- [*348] liam by name. So hep me God, and the saints; and this I will prove against thee by iny body, as this court shall award (c).” The batiel is then to be fought with the same weapons, viz. batons, the same solemnity, and the same oath against amulets and sorcery, that are used in the civil combat: and if the appellee be so far vanquished, that he cannot or will not fight any longer, he shall be adjudged to be hanged imme. diately; and then, as well as if he be killed in battel, providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain the fight from sunrising till the stars appear in the evening, he shall be acquitted. So also if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem, and become infamous ; and the appellee shall recover his damages, and also be for ever quit, not only of the appeal, but of all indictments likewise for the same offence (2).
prosecutor, that he was related to the deceased (for (b) Flet.1. 1, c. 34. 2 Hawk. P. C. 426.
none but near relations were permitted to prosecute (c) There is a striking resemblance between this in that court), and that the prisoner was the cause process and that of the court of Areopagus at Athens of his death; the prisoner, that he was innocent of for murder ; wherein the prosecutor and prisoner the charge against him. (Pott. Antiq. b. i, c. 19.) were both sworn in the most solemn manner: the
(2) The last time that the trial by battel stable of England to preside at the trial, who was awarded in this country, was in the case proclaimed a day for the duel, on which the of Lord Rae and Mr. Ramsay, in the 7 Ch. I. combatants were to appear with a spear, a The king by his commission appointed a con- long sword, a short sword, and a dagger ; but
(a) 2 Hawk. P. C. 427.