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ore an acrjúittal on an appeal is a good bar to an indictment on the same offnnco And so also was an acquittal on an indictment a good bar to an appeal, by the common law (k): and therefore, in favour of appeals, a general practice was introduced, not to try any person on an indictment of homicide, till after the year and day, within which appeals may be brought, were past; by which time it often happened that the witnesses died, or
the whole was forgotten. To remedy which inconvenience, the [*336] statute 3 Hen. VII. c. 1. enacts, that *indictments shall be proa
ceeded on, immediately, at the king's suit, for the death of a man, without waiting for bringing an appeal ; and that the plea of autrefoits acquit on an indictment, shall be no bar to the prosecuting of any appeal.
2. Secondly, the plea of autrefoits convict (9), or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the same crime (1). Hereupon it has been held, that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment, of murder ; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. It is to be observed, that the pleas of autrefoits acquit and autrefoits convici, or a former acquittal, and former conviction, must be upon a prosecution for the same identical act and crime. But the case is otherwise, in
The time 3. Thirdly, the plea of autrefoits attaint, or a former attainder; which is a good plea in bar, whether it be for the same or any other selony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or heretofore by abjuration ; and whether upon an 'appeal or an indictment: he may plead such attainder in bar to any subsequent indictment or appeal, for the same or for any other felony (m). And this because, generally, such proceeding on a second prosecution cannot be to any purpose for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he hath forfeited all that he had : so that it is absurd and superfluous to endeavour to attaint him a second time. But to this general rule, however, as to all others, there are
some exceptions; wherein, cessante ratione, cessat et ipsa ler. As, [*337] 1. Where the former attainder is reversed for error, for then it is
the same as if it had never been. And the same reason holds, where the attainder is reversed by parliament, or the judgment vacated by the king's pardon, with regard to felonies committed afterwards. 2. Where the attainder was upon indictment, such attainder is no bar to an appeal : for the prior sentence is pardonable by the king; and if that might be pleaded in bar of the appeal, the king might in the end defeat the suit of the subject, by suffering the prior sentence to stop the prosecution of a second, and then, when the time of appealing is elapsed, granting the de linquent a pardon. 3. An attainder in felony is no bar to an indictmenio treason: because not only the judgment and manner of death are differon., but the forfeiture is more extensive, and the land goes to different persons 4. Where a person attainted of one felony, is afterwards indicted as principal in another, to which there are also accessaries, prosecuted at the same time ; in this case it is held, that the plea of autrefoits attaint is no bar, but he shall be compelled to take his trial, for the sake of public justice; because the accessaries to such second felony cannot be convicted till after the conviction of the principal (n). And from these instances we may collect that a plea of autrefoits atteint is never good, but when a second trial would be quite superfluous (c) (10).
(m) Ibid. 375.
(k) 2 Hawk. P. C. 373. (1) 2 Hawk, P. C. 377.
upon any evidence that might have been ad- plea of autrefois acquit has been found against duced, his acquittal on that indictment may be him. Rex v. Welch, Car. Cr. L. 56. successfully pleaded to a second indictment; (9) As to this plea in general, see I Chit. and it is immaterial whether the proper evi- C. L. 462, 3. 2 Hale, 251 to 255. Hawk dence was adduced at the trial of the first in- b. 2. c. 36. s. 10 to 17. Burn J. Indictment dictment or not. Id. ibid. A prisoner indicted XI. for felony may plead not guilty after his special
4. Lastly, a pardon may be pleaded in bar; as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict. There is one advantage that at
ling a pardon in bar, or in arrest of judgment, before sentence is past; which gives it by much the preference to pleading it after sentence or attainder. This is, that by stopping the judgment it stops the attainder, and prevents the corruption of the blood; which, when once corrupted by attainder, cannot afterwards be restored, otherwise than by act of parlia.
But as the title of pardons is applicable to other stages of prosecu. tion ; and they have their respective force and efficacy, as well after as before conviction, outlawry, or "attainder ; I shall there- [*338) fore reserve the more minute considerations of them, till I have gone through every other mile except only that of execution.
Before I conclude this head of special pleas in bar, it will be necessary once more to observe, 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 resort to another if that be determined against him (as if, on action of debt, the defendant pleads a general release, and no such release can be proved, he cannot afterwards plead the general issue, nil debet, as he might at first: for he has made his election what plea to abide by, and it was his own folly to choose a rotten defence); though, I say, this strictness is observed in civil actions, quia interest reipublicæ ut sit finis litium : yet in criminal prosecutions in fanorem vitae, as well upon appeal as indictment, when a prisoner's plea in bar is found against him upon issue tried by a jury, or adjudged against him in point of law by the court ; still he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty (p). For che law allows many pleas, by which a prisoner may escape death ; but only one plea, in consequence whereof it can be inflicted; viz. on the general issue, after an impartial examination and decision of the fact, by the unanimous verdict of a jury (11). It remains therefore that I consider,
V. The general issue, or plea of not guilty (9), upon which plea alone (n) Poph. 107.
(p) 2 Hal. P. C. 239.
(9) See Appendix, o 1, (10) By the 7 and 8 G. IV. c. 28, s. 4, it is (11) But this is confined to cases of felony ; enacted that no plea setting forth any attain. a defendant having pleaded in bar in all cases der, shall be pleaded in bar of any indictment, of misdemeanor, is precluded from the bene. anless the attainder be for the same offence fit of the plea of not guil:y, if the plea of bas as that charged in the indictment: by which should be found insufficient, 8 East, 107. 1 enactment the plea of autrefois attaint seems M. & S. 184. 3 B. & C. 502. 2 B. & C.512 to be at an end.
unless on demurrer. Term. P. C. 189. 6 Eas.. In New York there is no attainder.
583. 602. See ante, 335, note 8.
(0) Staund. P. C. 107.
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
For (besides that these pleas do in effect amount to the general
issue ; since, if true, the prisoner is most clearly not guilty) as the [*339] facts in treason are *laid to be done proditorie et contra ligeantiae
suae debitum, and, in felony, that the killing was done felonice ; 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 nega.. tive, not guilty; and the jury upon the evidence will take notice of any defensive matter, and give there 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) (12).
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 assise, 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 ; prît praesto 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, fc. 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 [*340) in point of fact: 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 paratus esi verificare ;" which same thing is here expressed by the single word "prit.”
How our courts came to express a matter of this importance in 83 odd
(T) 2 Hal. P. C. 2.58.
(0) See Book III. pago 312
(12) In cases of indictments or informations ing, shew that he is entitled to the benefit or for misdemeanors, the above rule, as to plead. that exception, or proviso; and there are many ing the general issue, does not apply with the pleas of this description in the ancient en same degree of strictness ; for there are some iries. 2 Leach, 606. But the principal, and cases where a special plea is not only allow. indeed almost the only cases, in which special able, but even requisite. Thus, if the de. pleas to the merits are necessary, ure in the fendant fall within any exception or proviso, case of indictments for neglecting to remain which is not contained in the purview of the highways and bridges. As to these, see statute creating the offence, he may, by plead. general, i Chit. C. L. 473 to 477.
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 me. thod 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 himself upon the inquest in the usual form, that is, to answer that he will be tried by God and the country (3), 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) of 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, " oyes," 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 inistake, víz, 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 "counter;" 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 (w) See Appendix, 1.
option back to the prosecutor. (2) 2 Hawk. P. C. 399.
(a) Keylinge, 57. State Trials, passim. (y) ? Hal. P. C. 258.
(b) Stat. 12 Geo. III. c. 20. lei A learned author, who is very seldorn mista.
(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 culprie 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 pnt, the in Latin was entered thus upon the record : clerk of the arraigns at this day, immediately Non inde est culpabilis, el pro bono et malo ponit after the arraignment, writes upon the indici. se super patriam ; after this the attorney.gene- ment, over the name of the prisoner, pnls. 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 lenus,“ if a serjeant in the cominon pleas said this book.) I 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.”—Life of Lord think that prit was an easy corruption of pnt. Keeper North, 98. written for ponit by the clerk, as a minute that
(14) By 7 and 8 G. IV. c. 28, s. 1, tis en asue was joined, or ponit se super patriam ; or acted, that if any person, not having privilege one se might be converted into prist or prest, ment for treason, felony, or piracy, shall plead
of peerage, being arraigned upon any indict. us it is sometimes written. Cul was probably thereto a plea, of " not guilty," he shall
, by intended to denote the plea, and prie the issue ; such plea, without any further form, be deem VuL. 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 trial ; 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 () species of trial was that by ordeal : which was peculiarly distinguished by the appellation of judiciuin 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 Einma, the mother of Edward the Confessor, is mentioned to have cleared her character, whien suspected of familiarity with Alwyn bishop of Winchester (f). Water-ordeal was performed, either by plunging the bare arm up to the
calidum, si fuerit homo liber ; per aquam, si fueril rusticus. (Glanv. l. 14, c. 1.)
(e) This is still expressed in that common form of (d) Tenetur se purgare is qui accusatur, per Des speech,“ of going ihrough 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. I. ed to have put himself upon the country for stand mule, 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 -ordingly. In consequence of this wise en- think fit, to order the proper ofñcer to enter a sctment, the absurd ceremony of asking a pri- plea of not guilty" on behalf of such per soner how he will be tried, has been wholly son; and the plea so entered shall bave 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), the law in England; note 8, the law son felony, piracy, or misdemeanor, shalt in New York.
(a) de mor. Germ. 10.