not only in bar of the indictment; but, after verdict, in arrest of judgment; or after judgment, in bar of execution-the further consideration of pardons shall be reserved, till we have gone through every other title except only that of execution.

Before, however, we conclude this head of special pleas in bar, it is proper to observe, [that if a special plea of a prisoner charged with felony shall be 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 proceed to plead over to the felony the general issue, not guilty (1). For the law allows many pleas by which a prisoner may escape the punishment of felony, but only one plea in consequence whereof it can be inflicted: viz. on the general issue, after an impartial examination and decision of the facts, by the unanimous verdict of a jury.] It remains therefore that we consider

V. The general issue, that is to say, the plea of not guilty. This is the proper form, wherever the prisoner means either to deny or to justify the charge in the indictment; and it is to be observed, that if such charge be of treason or felony there can be no special plea of justification. [Thus on an indictment for murder, a man cannot plead that it was in his own defence, against a robber: but he must plead the general issue, not guilty, and give this special matter in evidence. For, (besides that such pleas do in effect amount to the general issue, since, if true, the prisoner is most clearly not guilty,) inasmuch as the facts

(1) 4 Bl. Com. p. 388; 2 Hale, P. C. 239; R. v. Gibson, East, 110. This is confined, as stated in the text, to felonies. It does not apply to indictments, or informa

tions, for misdemeanors (R. v. Taylor, 3 B. & C. 502); having been originally established only in favorem vitæ, at a time when many felonies were capital.

[in treason are laid to be done proditoriè et contra legeantiæ suæ debitum, and in felony, to be done felonicè; the charges. of a traitorous or felonious intent are the points and very gist of the indictment; and must be answered directly by the general negative, not guilty, the effect of which is that on the one hand it puts the prosecutor to the proof of every material fact he has alleged; and on the other it entitles the defendant to avail himself of any defensive circumstances, as amply as if he had pleaded them in a specific form. So that this is, upon all accounts, the most advantageous plea for the prisoner (m).]

By the plea of not guilty, the prisoner puts himself upon the trial by jury (n); and when the record comes afterwards to be made up,-for the proceedings ought regularly to be recorded,-the prosecutor on the part of the Crown adds the similiter (as it is called), by the words that he "doth the like" (o). But even before this formal entry, the similiter is supposed to be added by the prosecutor, immediately on the plea of not guilty being pleaded by the defendant (p),-which brings the parties to issue.

(m) 2 Hale, P. C. 258. It will be remembered that the court may order the plea of not guilty to be entered for the defendant, when he stands mute of malice, &c.; vide sup. p. 393.

(n) The defendant, on pleading not guilty, used formerly to refer the matter expressly to the trial by jury; but by 7 & 8 Geo. 4, c. 28, s. 1, he is now to be deemed to do so (in treason or felony) by simply pleading not guilty.

(0) By 7 Geo. 4, c. 64, s. 20, no judgment after verdict shall be stayed or reversed for want of a similiter.

(p) Other ceremonies were formerly observed,-which involved the true etymology of the word culprit. Thus when the prisoner pleaded

not guilty, non culpabilis, or nient culpable, it was abbreviated on the minutes of the court thus, "non (or nient) cul.," and the joining of issue thereon by the prosecutor was expressed by the abbreviation "prit.," the precise origin of which latter expression is somewhat doubtful. In course of time, it became the practice for the officer of the court to read aloud these words, without regard to their real meaning (which was beginning to be forgotten, owing to the disuse of law French); and to apply them as an appellation of the prisoner himself; for when a prisoner pleaded not guilty, the officer used to say, "Culprit, how

wilt thou be tried?" to which the latter usually added, "By God, and the country," meaning by a jury.

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.

(See 4 Bl. Com. 339, and note by Christian.) Blackstone also (ubi sup.) takes occasion, in reference to this subject, to remark upon another corruption of the old law French

which is still observable; viz. in the prologue to all our public proclamations, oyez, or hear ye, which is generally pronounced by the crier, most unmeaningly, oh! yes!

CHAPTER XVIII.

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, and this by reason of the superstition of our Saxon ancestors; who, like other northern nations, were extremely addicted to divination, a character which Tacitus observes of the antient Germans (a). They therefore invented certain 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.] To these, though most of them have been long since, and all are now, abolished, some notice seems to be due, on account of their legal and historical associations, and as matter of curiosity,-before we proceed to those existing methods which constitute the proper subject of the chapter (b).

I. [The most antient species of trial was that by ordeal (c) which was peculiarly distinguished by the appellation of judicium Dei, and sometimes vulgaris purgatio, to distinguish it from the canonical purgation, which was by the oath of the party.

(a) De Mor. Germ. 10. (b) Vide sup. p. 343.

(c) Wilk. Leges Ang. Sax. LL. Inæ, c. 77. See as to this ordeal, Turn. Angl. Sax. vol. ii. p. 532; Hall. Mid. Ag. vol. ii. p. 466; in

This was of two sorts,

which last work an instance is given of a citizen of London who underwent the ordeal of cold water, on a charge of murder, in the reign of Henry the second; and having failed therein, was hanged.

[either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common people (e). 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 (f). Fire-ordeal was performed either by taking up in the hand, unhurt, a piece of redhot iron, of one, two, or three pounds weight; or else by walking,-bare foot, and blindfold,-over nine red-hot 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 Emma, the mother of Edward the Confessor, is mentioned to have cleared her character, when suspected of familiarity with Alwyn, Bishop of Winchester (g).

Water-ordeal 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, where if he floated without any action of swimming, it was deemed an evidence of his guilt, but if he sank, he was acquitted. It is easy to trace out the traditional relics of this water-ordeal, in the ignorant barbarity that has been practised 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

(e) "Tenetur se purgare is qui accusatur, per Dei judicium; scilicet per calidum ferrum, vel per aquam, pro diversitate conditionis hominum: per ferrum calidum, si fuerit homo liber; per aquam, si fuerit rusticus."-Glanv. s. 14, c. 1.

See also Mirrour, c. 3, s. 23.

(f) This is still expressed in that common mode of speech, "of going through fire and water to serve another."

(9) Tho. Rudborne, Hist. Maj. Winton. 1. 4, c. 1.