BOOK 4, CHAPTER 26 Of Plea, and Issue

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WE are now to consider the plea of the prisoner, or defensive matter alleged by him on his arraignment, if he does not confess, or stand mute. This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A. plea in abatement; 4. A special plea in bar; or, 5. The general issue.

FORMERLY there was another plea, now abrogated, that of sanctuary; which is however necessary to be lightly touched upon as it may give some light to many parts of out ancient law: it being introduced and continued during the superstitious veneration, that was paid to consecrated ground in the times of popery. First then, it is to be observed, that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned) had fled to any church or church-yard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offense; and thereupon took the oath in that case provided, viz. that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return without leave from the king; he by this means saved his life, if he observed the conditions of the oath, by going with a cross in his hand and with all convenient speed, to the port assigned, and embarking. For it, during this forty days privilege of sanctuary, or in his road to the sea side, he was apprehended and arraigned in any court for this felony, he might plead the privilege of sanctuary, and had a right to be remanded, if taken out against his will.1 But by this abjuration his blood was attainted, and he forfeited all his goods and chattels.2 The immunity of these privileged places was very much abridged by the statutes 27 Hen. VIII. c. 19. and 32 Hen. VIII. c. 12. And now, by the statute 21 Jac. I. c. 28. all privilege of sanctuary, and abjuration consequent thereupon, is utterly taken away and abolished.

FORMERLY also the benefit of clergy used to be pleaded before trial or conviction, and was called a declinatory plea; which was the name also given to that of sanctuary.3 But, as the prisoner upon a trial has a chance to be acquitted, and totally discharged; and, if convicted of a clergyable felony, is entitled equally to his clergy after as before conviction; this course is extremely disadvantageous: and therefore the benefit of clergy is now very rarely pleaded; but, if found requisite, is prayed by the convict before judgment is passed upon him.

I PROCEED therefore to the five species of pleas, before mentioned.

I. A PLEA to the jurisdiction, is where an indictment is taken before a court, that has no cognizance of the offense; as if a man be indicted for a rape at the sheriff’s tourn, or for treason at the quarter sessions: in these or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged.4

II. A DEMURRER to the indictment. This is incident to criminal cases, as well as civil, when the fact as alleged is allowed to be true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, if a man be indicted for feloniously stealing a greyhound: which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass, to steal it: in this case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Some have held,5 that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution, as if convicted by verdict. But this is denied by others,6 who hold, that in such case he shall be directed and received to plead the general issue, not guilty, after a demurrer determined against him. Which appears the more reasonable, because it is clear, that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court, whether it be felony, or no; and upon the fact thus shown in appears to be felony; the court will nor record the confession, but admit him afterwards to plead not guilty.7 And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and, though a man by mispleading may in some cases lose his property, yet the law will not suffer him by such niceties to lose his life. However, upon this doubt, demurrers to indictments are seldom used: since the same advantages may be taken upon a plea of not guilty; or afterwards, in arrest of judgment, when the verdict has established the fact.

III. A PLEA in abatement is principally for a misnosmer, a wrong name, or a false addition to the prisoner. As, if James Allen, gentleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an esquire. And, if either fact is found by a jury, then the indictment shall be abated, as writs or declarations may be in civil actions; of which we spoke at large, in the preceding volume.8 But, in the end, there is little advantage accruing to the prisoner by means of these dilatory pleas; because if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner is his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he, who takes advantage of a flaw, must at the same time show how it may be amended. Let us therefore next consider a more substantial kind of plea, viz.

IV. SPECIAL pleas in bar; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it 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, or a pardon. There are many other pleas, which may be pleaded in bar of an appeal:9 but these are applicable to both appeals and indictments.

1. FIRST, the plea of auterfoits acquit, or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offense. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, 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 of the same offense. And so also was an acquittal on an indictment a good bar to an appeal, by the common law:10 and therefore, in favor 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 statute 3 Hen. VII. c. 1. enacts, that indictments shall be proceeded on, immediately, at the king’s suit, for the death of a man, without waiting for bringing an appeal; and that the plea, of auterfoits acquit on an indictment, shall be no bar to the prosecuting of any appeal.

2. SECONDLY, the plea of auterfoits convict, 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.11 Hereupon it has been held, that a conviction of manslaughter, on an appeal, 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 offenses differ in coloring and in degree. It is to be observed, that the pleas of auterfoits acquit, and auterfoits convict, 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

3. THIRDLY, the plea of auterfoits attaint, or a former attainder; which is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confession, by outlawry, or heretofore by adjuration; 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.12 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 has forfeited all that he had: so that it is absurd and superfluous to endeavor 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 lex [the reason ceasing, the law itself ceases]. As, 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 n 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 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, as robbery, is afterwards, indicted as principal in another, as murder, to which there are also accessories, prosecuted at the same time; in this case it is held, that the plea of auterfoits attaint is no bar, but he shall be compelled to take his trial, for the sake of public justice: because the accessories to such second felony cannot be convicted till after the conviction of the principal. And from these instances we may collect that the plea of auterfoits attaint is never good, but when a second trial would be quite superfluous.

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 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 the blood: which, when once corrupted by attainder, cannot afterwards be restored, otherwise than by act of parliament. But, as the title of pardons is applicable to other stages of prosecution; and they have their respective force and efficacy, as well after as before conviction, outlawry, or attainder; I shall therefore reserve the more minute consideration of them, till I have gone through every other title, 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 an action of debt the defendant against him; (as, if on an 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 [nothing owed], 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 defense) though, I say, this strictness is observed in civil actions, quia interest reipublicae ut sit finis litium [it is for the public good to put an end to litigation]: yet in criminal prosecutions, in favorem vitae [in deference to life], 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 [respond again], and may plead over to the felony the general issue, not guilty.13 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 facts, by the unanimous verdict of a jury. It remains therefore that I consider,

V. THE general issue, or plea of not guilty,14 upon which plea alone 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 defense against a robber on the highway, or a burglar; but he must plead the general issue, not guilty, and give this special matter in evidence. For (besides that these pleas do in effect amount to the general issue; since, if true, the prisoner is most clearly no guilty) as the facts in treason are laid to be done proditorie et contra ligeantiae suae debitum [traitorously and against his due allegiance]; 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 negative, not guilty; and the jury upon the evidence will take notice of any defensive matter, and give their 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.15

WHEN the prisoner has 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 assize, 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 monosvllables 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; prit, praesto sum, or paratus verificare. This is therefore a replication on behalf to the king viva voce [by voice] 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, etc, either in form or matter, were sufficiently good in law; and in 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 yearbooks and other ancient repositories of law.16 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,17 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 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 est verificare:” which same thing is here expressed by the single word, “prit.”

HOW our courts came to express a matter of this importance in so odd 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 method of taking down in court, upon the minutes, the replication and averment; “cul. prit:” which afterwards the ignorance of succeeding clerks adopted for the very words to be by them spoken.18

BUT however it may have arisen, the joining of issue (which, though now usually entered on the record,19 is no otherwise joined20 in any part of the proceedings) seems to be clearly the meaning of this obscure expression;21 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. This form has at present reference to appeal and approvements only, wherein the appellee has his choice, either to try the accusation by battle or by jury. But upon indictments, since the abolition of ordeal, there can be no other trial but that 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,22 if a commoner; and, if a peer, by God and his peers;23 the indictment, if in treason, is taken pro confesso [as confessed]: and the prisoner, in cases of felony, is adjudged to stand mute, and, if he perseveres in his obstinacy, shall be condemned to the peine fort et dure [penance hard and strong].

WHEN the prisoner has thus put himself upon his trial, 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.

NOTES

     1.    Mirr. c. 1. § 13. 2 hawk. P. C. 335.

     2.    2 Hawk. P. C. 52.

     3.    2 Hal. P. C. 236.

     4.    Ibid. 256.

     5.    2 Hal. P. C. 257.

     6.    2 Hawk. P. C. 334.

     7.    2 Hal. P. C. 225.

     8.    See Vol. III. pag. 302.

     9.    2 Hawk. P. C. ch. 23.

   10.    Ibid. 373.

   11.    2 Hawk. P. C. 377.

   12.    Ibid. 375.

   13.    2. Hal. P. C. 239.

   14.    See appendix, § 1.

   15.    2 Hal. P. C. 258.

   16.    North’s life of lord Guilford. 98.

   17.    See Vol. III. pag. 312.

   18.    Of this ignorance we may see daily instances, in the abuse of two legal terms of ancient French; one, the prologue to all proclamations, “oyez, or hear ye,” which is generally pronounced most unmeaningly “O yes:” the other, a more pardonable mistake, viz. when a jury are all sworn, the officer bids the crier number them, for which the word in law-french is, “countez;” but we now hear it pronounced in very good English, “count these.”

   19.    See appendix, § 1.

   20.    2 Hawk. P. C. 399.

   21.    2 Hal. P. C. 258.

   22.    A learned author, who is very seldom 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 some countenance to this observation, that the trial by ordeal used formerly to be called judicium Dei [God’s judgment]. But it should seem, that when the question gives the prisoner an option, his answer must be positive; and not in the disjunctive, which returns the option back to the prosecutor.

   23.    Kelyngc. 57. State Trials, passim.

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