deration of them, till I have gone through every other title except only that of execution. BEFORE I Conclude this head of fpecial pleas in bar, it will be neceffary once more to obferve; 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 refort to another if that be determined against him; (as if, on an ace tion of debt the defendant pleads a general release, and no fuch release can be proved, he cannot afterwards plead the general iffue, nil debet, as he might at first : for he has made his elece tion what plea to abide by, and it was his own folly to chuse a rotten defence;) though, I say, this strictness is obferved in civil actions, quia intereft republicæ ut fit finis litium: yet in criminal profecutions in favorem vitae, as well upon appeal as indictment, when a prisoner's plea in bar is found against him upon iffue tried by a jury, or adjudged against him in point of law by the court; ftill he shall not be concluded or convicted thereon, but shall have judgment of refpondeat oufter, and may plead over to the felony the general iffue, not guilty ". For the law allows many pleas, by which a prisoner may efcape death; but only one plea, in confequence whereof it can be inflicted; viz. on the general iffue, after an impartial examination and decifion of the facts, by the unanimous verdict of a jury. It remains therefore that I confider, V. THE general iffue, or plea of not guilty, upon which plea alone the prisoner can receive his final judgment of death. In cafe of an indictment of felony or treafon, there can be no fpecial juftification 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 iffue, not guilty, and give this special matter in evidence. For (befides that these pleas do in effect amount to the general iffue; fince, if true, the prifoner is most clearly not guilty) as the facts in treafon are laid to be done proditorie et contra ligeantiae fuae debitum, and, [ 339 ] in.felony, that the killing was done felonice; these charges, of a traiterous or felonious intent, are the points and very gift 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 defenfive matter, and give their verdict accordingly as effectually as if it were, or could be, fpecially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner". WHEN the prifoner hath thus pleaded not guilty, non cul, pabilis, or nient culpable; which was formerly used to be abbreviated upon the minutes, thus, "nox (or nient) cul." the clerk of the aflife, or clerk of the arraigns, on behalf of the crown, replies, that the prifoner is guilty, and that he is ready to prove him fo. This is done by two monofyllables in the fame fpirit of abbreviation, " culprit." which fignifies firft that the prifoner is guilty, (cul. culpable, or culpabilis,) and then that the king is ready to prove him fo; prit, praefto fum, 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 caufes. And that was done in the concifeft manner: for when the pleader intended to demur, he expreffed his demurrer in a fingle word, "judgment;" fignifying that he demanded judg ment whether the writ, declaration, plea, &c. either in form or matter, were fufficiently good in law and if he meant to reft on the truth of the facts pleaded, he expreffed that alfo in a single fyllable. "prit," fignifying that he was ready to prove his affertions: as may be obferved from the year-books and other antient repofitories of laws. By this replication the king and the prisoner are therefore at iffue: for we may remember, in our strictures upon pleadings in the preceding book, it was obferved, that when the paraties come to a fact, which is affirmed on one fide and denied on the other, then they are faid to be at iffue in point of fact: which is evidently the cafe here, in the plea of non 2 Hal. P. C. 258. North's life of lord Guildford. 98. сиво cul by the prifoner; and the replication of cul. by the clerk. And we may also remember, that the ufual conclufion 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 eft verificare :" which fame thing is here expreffed by the fingle word "prit." T How our courts came to exprefs a matter of this importance in fo odd and obfcure a manner, 66 rem tantam tim ne"gligenter," can hardly be pronounced with certainty. It may perhaps, however, be accounted for by fuppofing, that thefe were at firft fhort 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 fucceeding clerks adopted for the very words to be by them spoken ". X But however it may have arisen, the joining of iffue, (which, though now ufually entered on the record ", is no otherwife joined in any part of the proceedings,) feems to be clearly the meaning of this obfcure expreffion; which has puzzled our most ingenious etymologifts, and is commonly underftood as if the clerk of the arraigns, immediately on plea pleaded, had fixed an opprobrious name on the prifoner, by afking him, culprit, how wilt thou be tried?" for immediately upon issue joined it is inquired of the prifoner, by what trial he will make his innocence appear (1). This form u Of this ignorance we may fee daily inftances, in the abufe of two legal terms of antient French, one, the prologue to all proclamations, "oyez," or hear ye, which is generally pronounced most unmeaningly "yes" the other, a more pardonable mistake, viz. when a jury are all fworn, the officer bids the crier numb them, for which the word in w See Appendix, § 1. (1) The learned judge's explanation of prit from praefto fum, or paratus verificare, however ingenious, is certainly inconfiftent both. with the principles and practice of fpecial pleading. After the ge neral has at prefent reference to appeals and approvements only wherein the appellee has his choice, either to try the accusa[341] tion by battel or by jury. But upon indictments, fince 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 inqueft 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', neral iffue, or the plea of not guilty, there could be no replication; or the words paratus verificare could not poffibly have been used. This plea in Latin was entered thus upon the record: Non inde eft culpabilis, et pro bono et malo ponit fe Super patriam; after this the attorney-general, the king's coroner, or clerk of affize could only join iffue by facit fimiliter, 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 eafy cor. ruption of pnt. written for ponit, by the clerk, as a minute that iffue was joined, or ponit fe fuper patriam; or pnt se might be converted into prit or preft, as it is fometimes written. Cul was probably intended to denote the plea, and prit the issue; 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 queftion, How wilt thou be tried? naturally induced the ignorant part of the audience to suppose that cul prit was an appellation given to the prifoner. As a confirmation ́of the conjecture that prit is a corruption of pnt., the clerk of arraigns at this day, immediately after the arraignment, writes upon the indictment over the name of the prisoner, puts. And Roger North informs us, that in antient times, when pleadings in the courts were ore tenus, "if a ferjeant in the common pleas faid judgment, that was a demurrer; if prift, that was an iffue to "the country." Life of Lord Keeper North, 98. the the indictment, if in treason, is taken pro confeffo: and the prifoner, in cafes of felony, is adjudged to stand mute, and, if he perseveres in his obftinacy, shall now be convicted of the felony. b WHEN the prifoner 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 fend thee a good deliverance." And then they proceed, as foon as conveniently may be, to the trial; the manner of which will be considered at large in the next chapter. b Stat. 12 Geo. III. c. 20. |