amination and decision of the fact, by the unanimous verdict of a jury. It remains, therefore, that I consider V. Not guilty. The general issue, or plea of not guilty, (2) 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) [*339] as the facts in treason are laid to be done proditorie et contra ligeantiæ suæ debitum (traitorously and against his due allegiance), and, in felony, that the killing was done felonice (feloniously); 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 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) When the prisoner hath thus pleaded not guilty, non culpabilis, or nient culpable (not guilty); which was formerly used to be abbreviated upon the minutes, thus, "non (or nient) cul.," the clerk of the assizes, 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 (I am now ready to prove), or paratus verificare (prepared to verify). This is therefore a replication on behalf of the king viva voce (by word of mouth) 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, '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, (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 in point *of fact: [*340] which is evidently the case here, in the plea of non cul. by the prisoner; and the replication of cul. by the clerk. may also remember, that the usual conclusion of all affirmative pleadings, as this of cul. or guilty is, was by an averment in these (q) See Appendix, § 1. And we words, "and this he is ready to verify; et hoc paratus est verificare;" which same thing is here expressed by the single word "prit." How our courts came to express a matter of this importance in so odd and obscure a manner, "rem tantam tam negligenter" (so important a thing so negligently), 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) This 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 opprobious 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. form has at present reference to appeals and improvements only wherein the appellee has his choice, either to try the *accusation by battel or by jury. But upon indictments, since [*341] 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 his country, (2) if a commoner; and, if a peer, by God and his peers; (a) the indictment, if in treason, is taken pro confesso (as confessed); 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.1 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. (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, “Ŏ yes;" the other a more pardonable mistake, viz., when the 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." (w) See Appendix, § 1. (x) 2 Hawk. P. C. 399. (y) 2 Hal. P. C. 258. (2) 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. 1 When a prisoner pleads "not guilty" he puts himself upon the country, and the ceremony of asking him how he will be tried is discontinued.' And if (b) Stat. 12 Geo. III, c. 20. he stands mute the court will enter the plea of not guilty for him. 7 and 8 Geo. IV, c. 28, § 2. [*342] *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. Trial by ordeal.- The most ancient (b) species of trial was that by ordeal: which was peculiarly distinguished by the appellation of judicium Dei (the judgment of God); and sometimes vulga ris purgatio (common purgation), to distinguish it from the canonical purgation, which was by the oath of the party. This was of two sorts, (c) either fire-ordeal, 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 for friendship. (e) [*343] *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 ploughshares, laid lengthwise at equal 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 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 practiced 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 re (b) LL. Ano, c. 77. Wilk. 27. (c) Mirr. c. 3, § 23. (a) De Mor. Germ. 10. (d) Tenetur se purgare is qui accusatur, per Dei judicium; scilicet per calidum ferrum, vel per aquam, pro diversitate conditionis hominum; per ferrum calidum, si fuerit homo liber: per aquam si fuerit rusticus. (The accused party is bound to clear himself by the judgment of God; that is, either by hot iron, or by water, according to his rank: by hot iron, if he be a freeman; by water, if of inferior degree.) (Glanv. l. 14, c. 1.) (e) This is still expressed in that common form of speech, "of going through fire and water to serve another." (f) Tho. Rudborne Hist. maj. Winton, l. 4, c. 1. marked) (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, (h) a person suspected by Creon of a misde- [*344] meanor, 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 (2) gives us many instances of water-ordeal in Bythynia, 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 waterordeal, 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) 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, aquæ et ignis (the judgment of iron, water, and fire). (2) 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 (m) gives the reason: "non defuit illis opera et laboris pretium; semper enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat" (they did not go without reward for their pains and labour; for from judgments of this kind some gain always accrued to the priests). 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 præceptum Domini, non tentabis Dominum Deum tuum" (since it is against the commandment of the Lord — thou shalt not tempt the Lord thy God). (n) Upon this authority, though the canons themselves were of no validity in England, it [*345] was thought proper (as had been done in Denmark above a century before) (0) 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 council. (q). II. Test of the morsel.- Another species of purgation, somewhat similar to the former, but probably sprung from a presumptuous (m) De jure Sueonum, l. 1, c. 8. (1) Spelm. Gloss. 435. (n) Decret. part 2, caus. 2, qu. 5, dist. 7. Decretal. lib. 3, tit. 50, c. 9, and Gloss. ibid. (0) Mod. Un. Hist. xxxii, 103. (p) 9 Rep. 32. (g) 1 Rym. Foed. 228. Spelm. Gloss. 326. 2 Pryn. Rec. Append. 20. Seld. Eadm. fol. 48. 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: () 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" (he abjured it by swallowing the morsel of execration), (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) *However, we cannot but remark, that though in Euro [*346] pean 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 exists a trial by the corsned, very similar to that of our ancestors, only substituting raw rice instead of bread. (x) 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,' 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 dis (s) Numb. ch. v. (r) Spelm. Gl. 439. 1 Now abolished by statute 59 Geo. III, c. 46. See the proceedings in the case of Lord Rea and Mr. Ramsey, 11 St. Tr. 124, and the case of Ashford v. Thorn (u) Ingulph. ton, 1 B. & Ald. 405. See also 3 St. Tr. 483, note, and Mr. H. C. Lea's recent work entitled "Superstition and Force." |