for another (i); for the prisoner being considered as dead in law by the first attainder, and having therefore already forfeited all that he had, it was considered as [absurd and superfluous to endeavour to attaint him a second time.] But now, by 7 & 8 Geo. IV. c. 28, s. 4, it is enacted, that no plea setting forth any attainder shall be pleaded in bar of any indictment, unless the attainder be for the same offence as that charged in the indictment.

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 (j).] In capital offences, [there is one advantage that attends pleading 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 blood,] which follows in certain cases on conviction; and which cannot afterwards be purged except by Act of parliament (k). [But as the title of pardons is applicable to other stages of prosecution,]—a pardon being pleadable (according to the period at which it is obtained) not only in bar of the indictment; but, after verdict, in arrest of judgment; or, after judgment, in bar of execution :-the more minute consideration of them shall be reserved, till we have gone through every other title except only that of execution.

[Before we conclude this head of special pleas in bar, it will be necessary 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 (1): as if, on an action of

(i) 4 Bl. Com. 336; Hawk. P. C. b. 2, c. 36.

(j) As to pardons, vide post, c. xxv. (k) 4 Bl. Com. 338.

(1) It will be understood that Blackstone is speaking here (vol. iv. p. 338) of the case of a defendant's

first pleading one plea (or several together, as the case may be), and afterwards, on failure of these, attempting to place another on the record not to the case of his pleading several pleas contemporaneously, and, on failure at the trial to esta

[debt, the defendant pleads a general release, and no such release can be proved, he cannot afterwards plead the general issue,] that he " was never indebted as alleged," as he might at first (m)-[for he has made his election what plea to abide by, and it was his own folly to choose a rotten defence;] yet in criminal prosecutions for felonies, that rule is disregarded (n). For in such cases, [though 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 (o).] 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, or 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 in such case there can be no special plea, either in treason or felony. 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,) as the facts in treason are laid to be done proditoriè, and in felony, to be done

blish all of these, taking the benefit

of such as he is able to establish ;which the practice in civil cases permits, vide sup. vol. 111. p. 605.

(m) As to this plea, vide sup. vol. 111. p. 598.

(n) R. v. Gibson, 8 East, 110.

This is confined, as stated in the text, to felonies. It does not apply to indictments, or informations, for misdemeanors (R. v. Taylor, 3 B. & C. 502), being originally established only in favorem vitæ.

(0) 2 Hale, P. C. 239.

[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 negative, not guilty,]the effect of which is, that on the one hand it puts the prosecutor to the proof of every material fact alleged in the indictment or information; 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 (p).]

By the plea of not guilty, the prisoner puts himself upon the trial by jury (q); and when the record comes afterwards to be made up,-for the proceedings ought regularly to be recorded, according to the analogy of the practice in civil cases (r),—the prosecutor on the part of the Crown adds the similiter (as it is called), by the words that he "doth the like (s)." 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 (t),—which brings the parties

(p) 2 Hale, P. C. 258. This plea, as we have seen, the court may order to be entered for the defendant, when he stands mute of malice, &c.; vide sup. pp. 477, 478.

(q) 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.

(r) Vide sup. vol. 1. p. 616.

(s) By 7 & 8 Geo. 4, c. 64, s. 20 no judgment after verdict, shall be stayed or reversed for want of a similiter.

(t) Other ceremonies were formerly observed,-which involve the true etymology of the word culprit.

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

492

to issue (u). [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.]

latter usually added, " By God, and
the country," meaning by a jury.
(See 4 Bl. Com. 339, and note by
Blackstone also (ubi
Christian.)
sup.) takes occasion, in reference to
this subject, to remark upon ano-
ther corruption which has taken

place and is still observable in the law French; viz. in the prologue to all our public proclamations, oyez, or hear ye, which is generally pronounced, most unmeaningly, oh! yes! (u) As to the term issue, vide sup. vol. 1. p. 594.

CHAPTER XXII.

OF TRIAL AND CONVICTION.

[THE several methods of trial and conviction of offenders (a), 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 antient Germans (b). 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.

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 (d). This was of two sorts (e),

(a) Vide sup. p. 424.
(b) De Mor. Germ. 10.

(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 which last work an instance is given of a citizen of London undergoing

the ordeal of cold water, in a case of murder, in the reign of Henry the second, and on failure therein being hanged.

(d) Vide sup. vol. 1. p. 450, n. (d).

(e) Mirr. c. 3, s. 23.