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, (2) 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. 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 indictments, since the abolition of ordeal, there can be no other trial but by [*341] 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; 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. (7) 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. 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. L. The most ancient (b) species of trial was that by ordeal: which was peculiarly distinguished by the appellation of judicium Dei; and sometimes vulga ris purgatio, 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; (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, ovez," or hear ye, which is generally pronounced most unmeaningly, 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." (x) 2 Hawk. P. C. 399. (y) 2 Hal. P. C. 258. (w) See Appendix, § 1. (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. (b) Stat. 12 Geo. III, c. 20. (b) LL. Ina, c. 77. Wilk. 27. (a) Keylinge, 57. State Trials, passim. De Mor. Germ. 10. (c) Mirr. c. 8, § 23. (7) When a prisoner pleads "not guilty" he puts himself upon the country, and the cere mony of asking him how he will be tried is discontinued. And if he stands mute the court will enter the plea of not guilty for him. 7 and 8 Geo. IV., c. 28, § 2. 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) Fire-ordeal was performed [*343] 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. (ƒ) 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 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, (h) a person sus[*344] pected 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 Grotius (i) 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 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 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. (1) 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:" 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, "cum sit contra præceptum Domini, non tentabis non (d) Tenetur se purgare is qui accusatur, per Dei judicium; scilicet per calidum ferrum, vel per (f) Tho. Budborne Hist. maj. Winton, l. 4, c. 1. (m) De jure Sueonum, l. 1, c. 8. [*345] Dominum Deum tuum." (n) Upon this authority, though the canons *themselves were of 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 council. (q) II. Another species of purgation, somewhat similar to the former, but 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. (20) *However, we cannot but remark, that though in European countries [*346] 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, (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: (z) to which I have only to add, that the trial by battel may be demanded at the election of the appellee, in either an (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, 105. (p) 9 Rep. 32. (q) 1 Rym. Foed. 228. Spelm. Gloss. 326. 2 Pryn Rec. Append. 20. Seld. Eadm. fol. 48. (t) LL. Canut c. 6. (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. Thornton, 1 B. & Ald., 405. See also 3 St. Tr., 483, note, and Mr. H. C. Lea's recent work entitled " Superstition and Force." VOL. II.-62 489 appeal or an approvement; and that it is carried 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 must fight in their proper persons. And therefore, [*847] if the appellant 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. (b) 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," &c. "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, William by name. So help [*348] me, God, and the saints: and this I will prove against thee by my body, as this court shall award." (c) The battel 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 immediately; 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 forever quit, not only of the appeal, but of all indictments likewise for the same offence. IV. The fourth method of trial used in criminal cases is that by the peers of Great Britain, in the court of parliament, or the court of the lord high steward, when a peer is capitally indicted: for in case of an appeal, a peer shall be tried by jury. (d) (2) Of this enough has been said in a former chapter; (e) to which I shall now only add, that, in the method and regulation of its pro (a) 2 Hawk. P. C. 427. (b) Flet. l. 1, c. 34. 2 Hawk. P. C. 426. (c) There is a striking resemblance between this process and that of the court of Areopagus at Athens for murder; wherein the prosecutor and prisoner were both sworn in the most solemn manner; the prosecutor, that he was related to the deceased (for none but near relations were permitted to prosecute in that court) and that the prisoner was the cause of his death; the prisoner that he was innocent of the charge against him. (Pott. Antiq. b. i. c. 19. ) (d) 9 Rep. 30. 2 Inst. 49. (e) See page 259. (2) The nobility are tried by jury like commoners, except in cases of treason and felony and misprision thereof. ceedings, it differs little from the trial per patriam, or by jury; except that no special verdict can be given in the trial of a peer; (f) because the lords of parliament, or the lord high steward (if the trial be had in his court), are judges sufficiently competent of the law that may arise from the [*349] fact: and except, also, that the peers need not all agree in their verdict; but the greater number, consisting of twelve at the least, will conclude, and bind the minority. (g) V. The trial by jury, or the country, per patriam, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great charter: (h) "nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ." The antiquity and excellence of this trial, for the settling of civil property, has before been explained at large. () And it will hold much stronger in criminal cases; since in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject, than in disputes between one individual and another, to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that no man should be called to answer to the king for any capital crime, unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, *should afterwards be confirmed by the unanimous suffrage [*350] of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And however convenient these may appear at first (as doubtless all arbitrary powers, well executed, are the most convenient) yet let it be again remembered, that delays and little inconveniences in the forms of justice, are the price that all free nations must pay for their liberty in morë substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern. What was said of juries in general, and the trial thereby, in civil cases, will greatly shorten our present remarks, with regard to the trial of criminal suits: indictments, informations and appeals: which trial I shall consider in the same method that I did the former; by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it. When, therefore, a prisoner on his arraignment has pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto: that is, freeholders, without just exception, and of the (g) Kelynge, 56. Stat. 7 Wm. III, c. 8, § 11. Foster, 247. (f) Hatt. 116. (h) 9 Hen. III, c. 29. |