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IV. Special Pleas in Bar. These go to the merits of the indictment, and assign a reason, why the prisoner sbould not answer at all, nor put himself upon his trial for the crime alleged. These are of four kinds :
A former acquittal. A former conviction.
A former attainder. A pardon.
1. Autrefois Acquit or Former Acquittal. This is founded on the maxim of English common law, that no man is to be brought into jeopardy of his life more than once for the same offence. When a man is once fairly found not guilty upon any indictment, or other prosecution before any court having jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. Therefore an acquittal on an appeal is a good bar to an indictment for the same offence. So also was an acquittal on an indictment a good bar to an appeal by the common law; and a practice was introduced, not to try any one on an indictment for homicide, till after the year and day, within which appeals may be brought, were past; by which time probably witnesses had died, or the case was forgotten. To remedy this, by statute of Henry VII, indictments shall be proceeded upon immediately, at the king's suit, for the death of a man, without waiting for bringing an appeal, and that the pleas of autrefois acquit on an indictment, shall be no bar to prosecuting an appeal.
2. Autrefois Convict, or Former Conviction. This plea of a former conviction for the same crime, though no judgment was ever given, or perhaps will be, being suspended by benefit of clergy or other cause, is a good plea in bar of an indictment; for no man should be twice brought in danger of his life, for one and the same crime. The pleas of former acquittal or former conviction must be upon a prosecution for the same identical act and crime.
3. Autrefois Attaint, or Former Attainder. This is a good plea in bar, whether it be for the same or any other felony. 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 of any subsequent indictment or appeal, for the same or any other felony. The prisoner is dead in law by the first attainder, his blood is corrupted, and his property forfeited.
Exceptions to the Rule. But to this rule, there are some exceptions, wherein cessante ratione, cessat et ipsa lex, as :
(1.) Where the former attainder is reversed for error. So also where 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, who could suffer such sentence to stop the prosecution of a second, and then after the time of appealing, grant the delinquent a pardon.
(3.) An attainder in felony is no bar to an indictment of treason; because not only the judgment and manner of death are different, 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 accessories, prosecuted at the same time; in this case the plea of autrefois attaint is no bar, but he shall be compelled to take his trial, because the accessories to such second felony cannot be convicted, until after the conviction of the principal. A plea of autrefois attaint is never good, but where a second trial would be quite superfluous.
4. Pardon. 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 of pleading a pardon in bar, or in arrest of judgment before sentence is passed. By stopping the judgment it stops the attainder, and prevents the corruption of blood, which when once corrupted cannot afterwards be restored, except by act of parliament.
Contradictory Pleas. Civil Actions. In civil actions, a man must stand by the plea he has elected to make, by which he is concluded, and cannot resort to another, if that be determined against him; as if in an action of debt, the defendant pleads a general release, and no such release be proved, he cannot afterwards plead the general issue, nil debet, as he might at first, as he is thus estopped, because interest reipublicae, ut sit finis litium. Respondeat Ouster. Pleading Over. In criminal
prosecutions, however, in favorem vitae, as well upon appeal as upon indictment, when a prisoner's plea 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 he shall have judgment of respondeat ouster, and may plead over to the felony, the general issue, not guilty. For the 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.
V. General Issue. Plea of Not Guilty. Upon this general issue alone, the prisoner can receive his final judgment of death. In indictments of felony or treason, there can be no special justification put in by way of plea. In an indictment for murder, a man cannot plead, that the act was in self-defence. He must plead the general issue, not guilty, and give this special matter in evidence. These pleas amount in effect to the general issue. The charge of felonious intent is the very gist of the indictment, and must be answered directly, by the general negative, not guilty. The jury upon evidence, will note any defensive matter, and give their verdict accordingly, as effectually as if it
or could be specially pleaded. Hence, this is the most advantageous plea for the prisoner.
Brief Entries of Pleadings. When the prisoner has thus pleaded not guilty, non culpabilis or nient culpable, which formerly was abbreviated, non cul, the clerk on behalf of the crown replies, that the prisoner is guilty, and that he is ready to prove
This is done by two words abbreviated “cul prit.” This is therefore a replication on behalf of the king, viva voce, at the bar; which was formerly the course in all civil and criminal proceedings. 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, etc., 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 in a single syllable “prit,” signifying, that he was ready to prove his assertions. By this replication, the king and prisoner were therefore at issue, which is the case, when the parties come to a fact, affirmed on one side, and denied on the other. Here the
This statement applies to cases of felony only, and not to misdemeanors, where the failure of a plea in bar precludes a subsequent plea of not guilty, unless upon demurrer.-Chitty.
prisoner pleads not guilty, while the clerk replies, guilty, adding, and this he is ready to verify, et hoc paratus est verificare, which same thing is expressed by the single word “prit” or by“cul prit."
Duty of the Clerk of Court. The negligence of clerks, in abridging the entry of pleadings, probably led to the use of these brief terms, and to the phrase formerly used by the clerk of the arraigns, immediately on plea made, by asking the prisoner: “Culprit, how wilt thou be tried ?" If the prisoner be a commoner, he should reply: "by God and my country,” and if a peer: “ by God and my peers.” If he stands mute, the indictment in treason is taken pro confesso; and in cases of felony, he shall be convicted of the crime. When the prisoner has thus put himself on trial, the clerk answers: “God send thee a good deliverance.”
CHAPTER XXVII.-TRIAL AND CONVICTION.
Saxon Superstition. The several methods of trial and conviction of offenders, established by the laws of England, were formerly very numerous, through Saxon superstition. The Saxons, like other northern nations, were addicted to divination, and hence invented a considerable number of methods of purgation or trial, to preserve innocence from false witnesses; in the belief, that God would interpose miraculously.
I. Ordeal, This was the most ancient species of trial, and was termed 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: fire-ordeal and waterordeal. The former was 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 acting for hire or friendship.
Fire-ordeal. This was performed, either by taking in the hand, unhurt, a piece of red-hot iron of from one to three pounds weight; or else by walking barefoot and blindfold over nine red
1 If he stands mute, by statute of George IV, the court will enter the plea of not guilty for him.
hot plougshares, laid lengthwise at unequal distances. If the party escaped unhurt, he was adjudged innocent; but if it happened otherwise, as without collusion, it usually did, he was then condeinned as guilty.
Water-ordeal. This was performed, either by plunging the bare arm up to the elbow in boiling water, and escaping unhurt thereby, 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. The relics of this ordeal are traceable in the barbarity still practiced in some countries to discover witches, by drowning them in a pool of water to prove their innocence.
History of the Ordeal. Purgation by ordeal seems to have been very ancient and universal, in the times of superstitious barbarity. It was known to the ancient Greeks; for in the Antigone of Sophocles, a suspected person declared his readiness to "handle hot iron, and to walk over fire,” in order to manifest his innocence. Grotius gives instances of water-ordeal in Bithynia and Sardinia. On the coast of Malabar, the natives in some cases, when accused of an enormous crime, are obliged to swim across a broad river, abounding with crocodiles. If they escape death, they are reputed innocent. In Siam, besides the fire and water ordeals, occasionally the contending parties are exposed to the fury of a tiger. If the beast spare either, that party is accounted innocent; if neither, both are held to be guilty; if both, the trial is deemed incomplete.
In England. As late as the reign of king John, we find grants to the bishops and clergy to use the judicium ferri, aquae 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. However the canon law declared very early against trial by ordeal, as being the fabric of the devil, contra praeceptum Domini. On this authority, the trial by ordeal was abolished by an act of parliament in the reign of Henry III.
II. The Corsned, or Morsel of Execration. This species of purgation was somewhat similar to the former, 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
1 On the southwest coast of Hindostan.