Book IV. fact: which is evidently the cafe here, in the plea of non cul. by the prisoner; and the replication of cul. by the clerk. And we may alfo 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 " prît.” How our courts came to exprefs a matter of this importance in fo odd and obfcure a manner, σε rem tantam tam ne"gligenter," can hardly be pronounced with certainty. It may perhaps, however, be accounted for by fuppofing, that these 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. prît:" which afterwards the ignorance of fucceeding clerks adopted for the very words to be by them spoken ". BUT however it may have arifen, 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 expreflion; which has puzzled our moft 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 iffue joined it is inquired of the prifoner, by what trial he will make his innocence appear. This form has at prefent reference to appeals and approvements only wherein the appellee has his choice, either to try the accufa 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, "cyez," or hear ye, which is generally pronounced most unmeaningly "O yes:" the other, a more pardonable mistake, viz. when a jury are all fworn, the officer bids the crier number them, for which the word in w See Appendix, §. 1. 1341 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 prifoner 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 2, if a commoner; and, if a peer, by God and his peers 2; the indictment, if in treafon, is taken pro confeffo: and the prisoner, in cases of felony, is adjudged to stand mute, and, if he perfeveres in his obftinacy, fhall 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 confidered at large in the next chapter. z A learned author, who is very feldom 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 fome countenance to this obfervation, that the trial by ordeal ufed formerly to be called judicium Dei. But it fhould feem, that when the ques tion gives the prifoner an option, his anfwer must be pofitive: and not in the disjunctive, which returns the option back to the profecutor. a Kelynge 57. State Trials, paffim. b Stat. 12 Geo. III. c. 20. CHAPTER THE TWENTY-SEVENTH. OF TRIAL AND CONVICTION. HE feveral methods of trial and conviction of offend Ters eftablished by the laws of England, were for merely more numerous than at prefent, through the fuperftition of our Saxon ancestors: who, like other northern nations, were extremely addicted to divination: a character, which Tacitus obferves of the antient Germans 2. They therefore invented a confiderable number of methods of purgation or trial, to preferve innocence from the danger of falfe witneffes, and in confequence of a notion that God would always interpose miraculously, to vindicate the guiltless. b I. THE most antient fpecies of trial was that by ordeal; which was peculiarly distinguished by the appellation of judicium Dei; and fometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party. This was of two forts, either fire-ordeal, or waterordeal; the former being confined to perfons of higher rank, the latter to the common people ". Both thefe might be per a de mor. Germ. 10. b LL. Inae. c. 77. Tenetur fe purgare is qui accufatur, per Dei judicium; fcilicet per calidum ferrum, vel per aquam, pro diverfitate conditionis bominum: fer ferrum calidum fi fuerit bomo liber; per aquam, fi fuerit rufticus. (Glanv. 7. 14. c. 1.) formed formed by deputy: but the principal was to anfwer for the fuccefs of the trial; the deputy only venturing fome corporal pain, for hire, or perhaps for friendship. Fire-ordeal was performed either by taking up in the hand, unhurt, apiece of red-hot iron, of one, two, or three pounds weight; or elfe by walking, barefoot, and blindfold, over nine redhot plowfhares, laid lengthwife at unequal diftances: and if the party escaped being hurt, he was adjudged innocent; but if it happened otherwife, as without collufion it ufually did, he was then condemned as guilty. However, by this latter method queen Emma, the mother of Edward the confeffor, is mentioned to have cleared her character, when fufpected of familiarity with Alwyn bishop of Winchester f. WATER-ordeal was performed, either by plunging the bare arm up to the elbow in boiling water, and escaping unhurt thereby or by cafting 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 funk, he was acquitted. It is easy to trace out the traditional relics of this water-ordeal, in the ignorant barbarity ftill practifed in many countries to discover witches, by cafting 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 fame purpose by the emperor Theodore Lafcaris; who, attributing his ficknefs to magic, caufed all those whom he suspected to handle the hot iron: thus joining (as had been well remarked ) to the most dubious crime in the world, the most dubious proof of innocence. AND indeed this purgation by ordeal feems to have been very antient, and very univerfal, in the times of fuperftitious barbarity. It was known to the antient Greeks: for in the e This is fill expreffed in that common form of fpeech, " of going through fire and water to ferve another." f Tho. Rudborne Hift. maj. Winton. 1. 4. c. I. & Sp. L. b. 12. c. 5. Antigone Antigone of Sophocles ", a perfon, fufpected by Creon of a mifdemefnor, declares himself ready " to handle hot iron, "and to walk over fire," in order to manifest his innocence; which, the scholiaft tells us, was then a very usual purgation. And Grotius i 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 perfon 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, befides the ufual methods of fire and water-ordeal, both parties are fometimes exposed to the fury of a tyger let loose for that purpose: and, if the beaft fpares 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 *. ONE cannot but be astonished at the folly and impiety of pronouncing a man guilty, unlefs he was cleared by a miracle; and of expecting that all the powers of nature should be fufpended, by an immediate interpofition of providence to fave the innocent, whenever it was prefumptuously required. And yet in England, fo late as king John's time, we find grants to the bishops and clergy to use the judicium ferri, aquae, et ignis'. And, both in England and Sweden, the clergy prefided at this trial, and it was only performed in the churches or in other confecrated ground; for which Stiernhook gives the reafon; "non defuit illis operae et "laboris pretium ; femper enim ab ejufmodi judicio aliquid lucri m facerdotibus obveniebat." But, to give it it's due praise, we find the canon law very early declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil, "cúm fit contra praeceptum Domini, non tentabis Dominum "Deum tuum "" n Upon this authority, though the canons h v. 270. i On Numb. v. 17. k Mod. Univ. Hift. vii. 266. Spelm. Gl. 435. m de jure Sueonum, l. 1. c. 8. n Decret. part. 2. cauf. 2. qu. 5. dift.7. Decretal. lib. 3. tit. 50. c.9. & Gloff. ibid. |