CHAPTER THE TWENTY SIXTH.
OF PLEA, AND ISSUE.

WE are now to confider the plea of the prifoner, or defenfive matter alleged by him on his arraignment, if he does not confefs, or ftand mute. This is either, 1. A plea to the jurifdiction ; 2. A demurrer ; 3. A. plea in abatement ; 4. A fpecial plea in bar; or, 5. The general iffue.

FORMERLY there was another plea, now abrogated, that of fanctuary; which is however neceffary to be lightly toughed upon as it may give fome light to many parts of out antient law : it being introduced and continued during the fuperftitious veneration, that was paid to confecrated ground in the times of popery. Firft then, it is to be obferved, that if a perfon accufed of any crime (except treafon, wherein the crown, and facrilege, wherein the church, was too nearly concerned) had fled to any church or church-yard, and within forty days after went in fackcloth and confeffed himfelf guilty before the coroner, and declared all the particular circumftances of the offence; and thereupon took the oath in that cafe provided, viz. that he abjured the realm, and would depart from thence forthwith at the port that fhould be affigned him, and would never return without leave from the king; he by this means faved his life, if he obferved the conditions of the oath, by going with a crofs in his hand and with
all
.P 327
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
all convenient fpeed, to the port affigned, and embarking. For it, during this forty days privilege of fanctuary, or in his road to the fea fide, he was apprehended and arraigned in any court for this felony, he might plead the privilege of fanctuary, and had a right to be remanded, if taken out againft his will ^a. But by this abjuration his blood was attainted, and he forfeited all his goods and chattels ^b. The immunity of thefe privileged places was very much abridged by the ftatutes 27 Hen. VIII. c. 19. and 32 Hen. VIII. c. 12. And now, by the ftatute 21 Jac. I. c. 28. all privilege of fanctuary, and abjuration confequent thereupon, is utterly taken away and abolifhed.

FORMERLY alfo the benefit of clergy ufed to be pleaded before trial or conviction, and was called a declinatory plea; which was the name alfo given to that of fanctuary ^c. But, as the prifoner upon a trial has a chance to be acquitted, and totally difcharged; and, if convicted of a clergyable felony, is entitled equally to his clergy after as before conviction; this courfe is extremely difadvantageous: and therefore the benefit of clergy is now very rarely pleaded; but, if found requifite, is prayed by the convict before judgment is paffed upon him.

I PROCEED therefore to the five fpecies of pleas, beforementioned.

I. A PLEA to the jurifdiction, is where an indictment is taken before a court, that hath no cognizance of the offence; as if a man be indicted for a rape at the fheriff's tourn, or for treafon at the quarter feffions: in thefe or fimilar cafes, he may except to the jurifdiction of the court, without anfwering at all to the crime alleged ^d.

II. A DEMURRER to the indictment. This is incident to criminal cafes, as well as civil, when the fact as alleged is allowed

.{FS}
^a Mirr. c. 1. §. 13. 2 hawk. P. C. 335.
^b 2 Hawk. P. C. 52.
^c 2 Hal. P. C. 236.
^d Ibid. 256.
.{FE}
to
.P 328
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
to be true, but the prifoner joins iffue upon fome point of law in the indictment, by which he infifts that the fact, as ftated, is no felony, treafon, or whatever the crime is alleged to be. Thus, if a man be indicted for felonioufly ftealing a greyhound : which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trefpafs, to fteal it: in this cafe the party indicted may demur to the indictment; denying it to be felony, though he confeffes the act of taking it. Some have held ^e, that if, on demurrer, the point of law be adjudged againft the prifoner, he fhall have judgment and execution, as if convicted by verdict. But this is denied by others ^f, who hold, that in fuch cafe he fhall be directed and received to plead the general iffue, not guilty, after a demurrer determined againft him. Which appears the more reafonable, becaufe it is clear, that if the prifoner freely difcovers the fact in court, and refers it to the opinion of the court, whether it be felony, or no; and upon the fact thus fhewn in appears to be felony; the court will nor record the confeffion, but admit him afterwards to plead not guilty ^g. And this feems to be a cafe of the fame nature, being for the moft part a miftake in point of law, and in the conduct of his pleading; and, though a man by mifpleading may in fome cafes lofe his property, yet the law will not fuffer him by fuch niceties to lofe his life. However, upon this doubt, demurrers to indictments are feldom ufed: fince the fame advantages may be taken upon a plea of not guilty; or afterwards, in arreft of judgment, when the verdict has eftablifhed the fact.

III. A PLEA in abatement is principally for a mifnofmer, a wrong name, or a falfe addition to the prifoner. As, if James Allen, gentleman, is indicted by the name of John Allen, efquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an efquire. And, if either fact is found by a jury, then the indictment fhall be abated, as

.{FS}
^e 2 Hal. P. C. 257.
^f 2 Hawk. P. C. 334.
^g 2 Hal. P. C. 225.
.{FE}
writs
.P 329
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
writs or declarations may be in civil actions; of which we fpoke at large, in the preceding volume^h. But, in the end, there is little advantage accruing to the prifoner by means of thefe dilatory pleas; becaufe if the exception be allowed, a new bill of indictment may be framed, according to what the prifoner 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, muft at the fame time fhew how it may be amended. Let us therefore next confider a more fubftantial king a plea, viz.

IV. SPECIAL pleas in bar; which go to the merits of the indictment, and give a reafon why the prifoner ought not to anfwer it at all, nor put himfelf upon his trial for the crime alleged. Thefe 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 appealⁱ: but thefe are applicable to both appeals and indictments.

1. FIRST, the plea of auterfoits acquit, or a former acquittal, is grounded on this univerfal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the fame offence. And hence it is allowed as a confequence, that when a man is once fairly found not guilty upon any indictment, or other profecution, he may plead fuch acquittal in bar of any fubfequent accufation for the fame crime. Therefore an acquittal on an appeal is a good bar to an indictment of the fame offence. And fo alfo was an acquittal on an indictment a good bar to an appeal, by the common law^k: and therefore, in favour of appeals, a general practice was introduced, not to try any perfon on an indictment of homicide, till after the year and day, within which appeals may be brought, were paft; by which time it often happened that the witneffes died, or the whole was forgotten. To remedy which inconvenience, the ftatute 3 Hen. VII. c. 1. enacts,

.{FS}
^h See Vol. III. pag. 302.
ⁱ 2 Hawk. P. C. ch. 23.
^k Ibid. 373.
.{FE}

VOL. IV.

S f

that

.P 330
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
that indictments fhall be proceeded on, immediately, at the king's fuit, for the death of a man, without waiting for bringing an appeal; and that the plea, of auterfoits acquit on an indictment, fhall be no bar to the profecuting of any appeal.

2. SECONDLY, the plea of auterfoits convict, or a former conviction for the fame identical crime, though no judgment was ever given, or perhaps will be (being fufpended by the benefit of clergy or other caufes) is a good plea in bar to an indictment. And this depends upon the fame principle as the former, that no man ought to be twice brought in danger of his life for one and the fame crime^l. Hereupon it has been held, that a conviction of manflaughter, on an appeal, is a bar even in another appeal, and much more in an indictment, of murder; for the fact profecuted is the fame in both, though the offences differ in colouring and in degree. It is to be obferved, that the pleas of auterfoits acquit, and auterfoits convict, or a former acquittal, and former conviction, muft be upon a profecution for the fame identical act and crime. But the cafe is otherwife, in

3. THIRDLY, the plea of auterfoits attaint, or a former attainder; which is a good plea in bar, whether it be for the fame or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confeffion, by outlawry, or heretofore by adjuration; and whether upon an appeal or an indictment; he may plead fuch attainder in bar to any fubfequent indictment or appeal, for the fame or for any other felony^m. And this becaufe, generally, fuch proceeding on a fecond profecution cannot be to any purpofe; for the prifoner is dead in law by the firft attainder, his blood is already corrupted, and he hath forfeited all that he had: fo that it is abfurd and fuperfluous to endeavour to attaint him a fecond time. But to this general rule however, as to all others, there are fome exceptions; wherein, ceffante ratione, ceffat et ipfa lex. As, 1. Where the former attainder is reverfed for error, for then it

.{FS}
¹ 2 Hawk. P. C. 377.
^m Ibid. 375.
.{FE}
is
.P 331
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
is the fame as if it had never been. And the fame reafon holds, where the attainder is reverfed by parliament, or the judgment vacated by the king's pardon, with regard to felonies committed afterwards. 2. Where the attainder was upon indictment, fuch attainder is no bar to an appeal: for the prior fentence is pardonable by the king; and if that might be pleaded n bar of the appeal, the king might in the end defeat the fuit of the fubject, by fuffering the prior fentence to ftop the profecution of a fecond, and then, when the time of appealing is elapfed, granting the delinquent a pardon. 3. An attainder in felony is no bar to an indictment of treafon: becaufe not only the judgment and manner of death are different, but the forfeiture is more extenfive, and the land goes to different perfons. 4. Where a perfon attainted of one felony, as robbery, is afterwards, indicted as principal in another, as murder, to which there are alfo acceffories, profecuted at the fame time; in this cafe it is held, that the plea of auterfoits attaint is no bar, but he fhall be compelled to take his trial, for the fake of public juftice: becaufe the acceffories to fuch fecond felony cannot be convicted till after the conviction of the principal. And from thefe inftances we may collect that the plea of auterfoits attaint is never good, but when a fecond trial would be quite fuperfluous.

4. LASTLY, a pardon may be pleaded in bar; as at once deftroying the end and purpofe of the indictment, by remitting that punifhment, which the profecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arreft of judgment, before fentence is paft; which gives it by much the preference to pleading it after fentence or attainder. This is, that by ftopping the judgment it ftops the attainder, and prevents the corruption of the blood: which, when once corrupted by attainder, cannot afterwards be reftored, otherwife than by act of parliament. But, as the title of pardons is applicable to other ftages of profecution; and they have their refpective force and efficacy, as well after as before conviction, outlawry, or attainder; I fhall therefore referve the more mi-

S f 2

nute

.P 332
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
nute confideration of them, till I have gone through every other title, except only that of execution.

BEFORE I conclude this head of fpecial pleas in bar, it will be neceffary once more to obferve; 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 refort to another if that be determined againft him; (as, if on an action of debt the defendant againft him; (as, if on an action of debt the defendant pleads a general releafe, and no fuch releafe can be proved, he cannot afterwards plead the general iffue, nil debet, as he might at firft: for he has made his election what plea to abide by, and it was his own folly to chufe a rotten defence) though, I fay, this ftrictnefs is obferved in civil actions, quia intereft reipublicae ut fit finis litium: yet in criminal profecutions, in favorem vitae, as well upon appeal as indictment, when a prifoner's plea in bar is found againft him upon iffue tried by a jury, or adjudged againft him in point of law by the court; ftill he fhall not be concluded or convicted thereon, but fhall have judgment of refpondeat oufter, and may plead over to the felony the general iffue, not guilty ⁿ. For the law allows many pleas by which a prifoner may efcape death; but only one plea, in confequence whereof it can be inflicted; viz. on the general iffue, after an impartial examination and decifion of the facts, by the unanimous verdict of a jury. It remains therefore that I confider,

V. THE general iffue, or plea of not guilty ^o, upon which plea alone the prifoner can receive his final judgment of death. In cafe of an indictment of felony or treafon, there can be no fpecial juftification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence againft a robber on the highway, or a burglar; but he muft plead the general iffue, not guilty, and give this fpecial matter in evidence. For (befides that thefe pleas do in effect amount to the general iffue; fince, if true, the prifoner is moft clearly no guilty) as the facts in treafon are laid to be done pro-

.{FS}
ⁿ 2 Hal. P. C. 239.
^o See appendix, §. 1.
.{FE}
ditorie
.P 333
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
ditorie et contra ligenatiae fuae debitum; and, in felony, that they killing was done felonice; thefe charges, of a traitorous or felonious intent, are the points and very gift of the indictment, and muft be anfwered directly, by the general negative, not guilty; and the jury upon the evidence will take notice of any defenfive matter, and give their verdict accordingly, as effectually as if it were, or could be, fpecially pleaded. So that this is, upon all accounts, the moft advantageous plea for the prifoner ^p.

WHEN the prifoner hath thus pleaded not guilty, non culpabilis, or nient culpable; which was formerly ufed to be abbreviated upon the minutes, thus, “non (or nient) cul.” the clerk of the affife, or clerk of the arraigns, on behalf of the crown replies, that the prifoner is guilty, and that he is ready to prove him fo. This is done by two monofvllables in the fame fpirit of abbreviation, “cul. prit.” which fignifies firft that the prifoner is guilty, (cul. culpable, or culpabilis) and then that the king is ready to prove him fo; prit, praefto fum, or paratus verificare. This is therefore a replication on behalf to the king viva voce at the bar; which was formerly the courfe in all pleadings, as well in civil as in criminal caufes. And that was done in the concifeft manner: for when the pleader intended to demur, he expreffed his demurrer in a fingle word, “judgment;” fignifying that he demanded judgment whether the writ, declaration, plea, &c, either in form or matter, were fufficiently good in law; and in he meant to reft on the truth of the facts pleaded, he expreffed that alfo in a fingle fyllable, “prit;” fignifying that he was ready to prove his affertions; as may be obferved from the yearbooks and other antient repofitories of law ^q. By this replication the king and the prifoner are therefore at iffue: for we may remember, in our ftrictures upon pleadings in the preceding book ^r, it was obferved, that when the parties come to a fact, which is affirmed on one fide and denied on the other, then they are faid to be at iffue in point of fact: which is evidently

.{FS}
^p 2 Hal. P. C. 258.
^q North's life of lord Guilford. 98.
^r See Vol. III. pag. 312.
.{FE}
the
.P 334
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
the cafe here, in the pea of non cul. by the prifoner; 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 thefe words, “and this he is ready to verify; et hoc paratus eft verificare:” which fame thing is here expreffed by the fingle word, “prit.”

HOW our courts came to exprefs a matter of this importance in fo odd and obfcure a manner, “rem tantam tam negligenter,” can hardly be pronounced with certainty. It may perhaps, however, be accounted for by fuppofing, that thefe were at firft fhort notes, to help the memory of the clerk, and remind him what he was to reply; or elfe it was the fhort method of taking down in court, upon the minutes, the replication and averment; “cul. prit:” which afterwards the ignorance of fucceeding clerks adopted for the very words to be by them fpoken ^s.

BUT however it may have arifen, the joining of iffue (which, though now ufually entered on the record ^t, is no otherwife joined ^u in any part of the proceedings) feems to be clearly the meaning of this obfcure expreffion ^w; 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 enquired of the prifoner, by what trial he will make his innocence appear. This form has at prefent reference to appeal and approvements only, wherein the appellee has his choice, either to try the accufation by battle or by jury. But upon in-

.{FS}
^s Of this ignorance we may fee daily inftances, in the abufe of two legal terms of antient French; one, the prologue to all proclamations, “oyez, or hear ye,” which is generally pronounced moft unmeaningly “O yes:” the other, a more pardonable miftake, viz. when a jury are all fworn, 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 Englifh, “count thefe.”
^t See appendix, §. 1.
^u 2 Hawk. P. C. 399.
^w 2 Hal. P. C. 258.
.{FE}
dictments,
.P 335
PUBLIC WRONGS.
BOOK IV.
Ch. 26.
dictments, fince the abolition of ordeal, there can be no other trial but that by jury, per pais, or by the country: and therefore, if the prifoner refufes to put himfelf upon the inquift in the ufual form, that is, to anfwer that he will be tried by God and the country ^x, if a commoner; and, if a peer, by God and his peers ^y; the indictment, if in treafon, is taken pro confeffo: and the prifoner, in cafes of felony, is adjudged to ftand mute, and, if he perfeveres in his obftinacy, fhall be condemned to the peine fort et dure.

WHEN the prifoner has thus put himfelf upon his trial, clerk anfwers 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.

.{FS}
x A learned author, who is very feldom miftaken in his conjectures, has obferved that the proper anfwer is “by God or the country,” that is, either by ordeal or by jury; becaufe the queftion fuppofes an option in the prifoner. 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 queftion gives the prifoner an option, his anfwer muft be pofitive; and not in the disjunctive, which returns the option back to the profecutor.
^y Kelyngc. 57. State Trials, paffim
.{FE}
.P 336
PUBLIC WRONGS.
BOOK IV.
Ch. 27.