Issue on plea of not guilty. 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 assize, 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. prît.," which signifies, first, that the prisoner is guilty (cul., culpable, or culpabilis), and then that the king is ready to prove him so, prît præsto 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 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,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. 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 paratas est verificare," which same thing is here expressed by the single word "prît."1 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. prît;" which afterward the ignorance of North's Life of Lord Guilford, 98. the offense, he may, by pleading, show t See vol iii., 312. ways and bridges. As to these, see, in general, 1 Chit., Crim. L., 473 to 477. [CHITTY.] (16) The stat. 7 Geo. IV., c. 16, s 20, provides that no judgment after verdict on any indictment for any felony or misdemeanor shall be stayed or reversed for want of a similiter 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,w 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 indict- [341] ments, 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;a " 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, "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." See Appendix, § 1. * 2 Hawk., P. C., 399. y 2 Hal., P. C., 258. (17) The learned judge's explanation of prit, from præsto sum, or paratus verificare, however ingenious, is certainly inconsistent both with the principles and practice of special pleading. After the general issue, or the plea of not guilty, there could be no replication; and the words paratas 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 think that prit was an easy corruption of pnt. written for ponit by the clerk, as a min 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. Kelynge, 57; State Trials, passim. ute that issue was joined, or ponit se su- In New York it is not necessary to ask a defendant arraigned upon an indictment how he will be tried.-(2 R. S., 730, § 70.) 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 fel ony. 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.18 b Stat. 12 Geo. III., c. 20. when pleadings in the courts were ore tenus, "if a sergeant in the common pleas said judgment, that was a demurrer; if prit, that was an issue to the country."-Life of Lord-keeper North, 98. [CHRISTIAN.] (18) All these forms, subsequent to the plea of not guilty, have now fallen into disuse; the stat. 7 & 8 Geo. IV., c. 28, s. 1, having enacted, that if any per392 son, not having privilege of peerage (as to which see now the 4 & 5 Vict., c. 22, post, p. 367, n. (2)), being arraigned upon any indictment for treason, felony, or piracy, shall plead thereto a plea of not guilty, he shall by such plea, without any further form, be deemed to have put himself upon the country for trial, and the court shall, in the usual manner, order a jury for the trial of such person accordingly. CHAPTER XXVII. OF TRIAL AND CONVICTION. TRIAL AND THE several methods of trial and conviction of offenders, es- SEVENTH. tablished by the laws of England, were formerly more numer- CONVICTION ous 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. Trial by ordeal. I. The most ancient 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 corporeal pain, for [343] hire, or perhaps for friendship. Fire-ordeal was performed Fire-ordeal. 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 Confessor, is mentioned to have cleared her character when suspected of familiarity with Alwyn, bishop of Winchester.f ordeal, Water-ordeal was performed either by plunging the bare Waterarm up to the elbow in boiling water, and escaping unhurt thereby; or by casting the person suspected into a river or a De Mor. Germ., 10. b LL. Inæ, 3, c. 77. c Mirr., c. 3, § 23. Tenetur se purgare is qui accusatur, per Dei judicium; scilicet. per calidum ferrum, vel per aquam, pro diversitate conditionis hominum; per ferrum cali dum si fuerit homo liber; per aquam, si This is still expressed in that com- f Tho. Rudborne, Hist. Maj. Winton, 1. 4, c. 1. pond of cold water, and if he floated therein, without any ac[344]tion 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 remarkeds) to the most dubious crime in the world the most dubious proof of innocence. History of trial by or deal. Abolished, emp. Hen. II. 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 misdemeanor, 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 Grotiusi 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 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 can not 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.! 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 Stiernhookm gives the reason, "non defuit illis operæ 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, 66 cum sit contra præceptum Domini, non tenta Sp. L., b. 12, c. 5. b V., 270. On Numb., v., 17. Mod. Univ. Hist., vii. 266. |