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to appeals and approvements only wherein the appellee has his choice either to *341]

try the *accusation by battel or by jury. But upon indictments, since

the abolition of ordeal, there can be no other trial but 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,(z) if a commoner; and, if a peer, by God and his peers;(a) the indictment, if in treason, is taken pro confesso; and the prisoner, in cases of felony, is adjudged to stand mute, and if he perseveres in his obstinacy shall now be convicted of the felony.10

When the prisoner has thus put himself upon his trial, the clerk answers, in the humane language of the law, which always hopes that the party's innovence, rather than his guilt, may appear, “God send thee a good deliverance." And then they proceed as soon as con

onveniently may be to the trial; the manner of which will be considered at large in the next chapter.

CHAPTER XXVII.

OF TRIAL AND CONVICTION.

*THE several methods of trial and conviction of offenders established *342]

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.(a) They therefore invented a considerable number of 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.

I. The most antient(b) species of trial was that by ordeal, 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. This was of two sorts, (c) either fire-ordeal, or water-ordeal; the former being confined to persons of higher rank, the latter to the common

(*) A learned author, who is very seldom mistaken in his the disjunctive, which returns the option back to the proso conjectures, has observed that the proper answer is by God or the coun ;" that is, either by ordeal or by jury; () Keylinge, 57. State Trials, passim. because the question supposes an option in the prisoner. Stat. 12 Geo. III. c. 20. And certainly it gives some countenance to this observation (a) De Mor. Germ. 10. that the trial by ordeal used formerly to be called judicium (6) LL. Ina, 3, c. 77 Dei. But it should seem that when the question gives the (9) Mirr. c. 3, & 23. prisoner an option his answer must be positive, and not in

cutor.

firmation of the conjecture that prit is a corruption for pnt, the clerk of the arraigns at this day, immediately after the arraignment, writes upon the indictment, over the name of the prisoner, pnts. And Roger North informs us that in ancient times, when pleadings in the courts were ore tenus, “ if a serjeant in the Common Pleas said judgment, that was a demurrer; if prist, that was an issue to the country.” Life of Lord-Keeper North, 98.-Christian.

10 By 7 & 8 Geo. IV. c. 28, s. 1, it is enacted that if any person not having privilege of peerage, being arraigned upon any indictment for treason, felony, or piracy, shall plead thereto a plea of “not guilty,” he shall by such plea, without any further form, be deemed to have put himself upon the country for trial, and the court shall, in the usual manner, order a jury for the trial of such person accordingly. In consequence of this wise enactment, the absurd ceremony of asking a prisoner how he will be tried has been wholly discontinued. By sect. 2 of the same statute, it is enacted that if any person being arraigned upon or charged with any indictment for treason, felony, piracy, or misdemeanour shall stand mute, or will not answer directly to the indictment or information, in every such case it shall be lawful for the court, if it shall so think fit, to order the proper officer to enter a plea of “not guilty" on behalf of such person ; and the plea so entered shall have the same force and effect as if such person had actually pleaded the same.CHITTY. .

people.(d) 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.(e) Fire-ordeal was *performed either by taking up in the hand, unhurt, a piece of red-hot iron of one,

[*343 two, or three pounds' weight; or else by walking barefoot, 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.(f)

Water-ordeal.was performed either by plunging the bare arm up to the elbow iu boiling water, and escaping unburt 'thereby, or by casting 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 sunk he was acquitted. It is easy to trace out the traditional relics of this water-ordeal in the ignorant barbarity still 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 been well remarked)(9) to the most dubious crime in the world the most dubious proof of innocence.

And, indeed, this purgation by ordeal seems to have been very antient and very universal in the times of superstitious barbarity. It was known to the antient Greeks: for, in the *Antigone of Sophocles, (h) a person, suspected by Creon of a misdemeanour, declares himself ready “to handle

[*344 hot iron and to walk over fire,” in order to manifest his innocence, which, the scholiast tells us, was then a very usual purgation. And Grotius(1) 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 person 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, besides the usual methods of fire and water ordeal, both parties are sometimes exposed to the fury of a tiger let loose for that purpose, and if the beast spare either, that person is accounted innocent; if neither, both are held to be guilty; but if he spares both, the trial ia incomplete, and they proceed to a more certain criterion.(k)

One cannot but be astonished at the folly and impiety of pronouncing a man guilty unless he was cleared by a miracle, and of expecting that all the powers of nature should be suspended by an immediate interposition of Providence to save the innocent whenever it was presumptuously required. And yet in England so late as king John's time we find grants to the bishops and clergy to use the judicium ferri, aquæ, et ignis.(1) And, both in England and Sweden, the clergy presided at this trial, and it was only performed in the churches or in other consecrated ground; for which Stiernhook(m) gives the reason: "non defuit illis operæ et laboris pretium; semper enim ab ejusmodi judicio aliquid lucri sacerdotibus obveniebat.But, to give it its due praise, we find the canon law very early declaring against trial by ordeal, or vulgaris purgatio, as being the fabric of the devil, "cum sit contra præceptum Domini, non tentabis Dominum Deum tuum.(n) Upon this authority, though the canons *themselves were of no validity in England, it was thought proper (as had been done in Denmark above

[*315 a century before)0) to disuse and abolish this trial entirely in our courts of jus.

() Tendur se purgare is qui accusatur. per Dei judicium ; (*) V. 270. Kilicet per calidum ferrum, vel per aquam, pro diversitate On Numb. v. 17. onditionis hominum: per ferrum calidum, si fuerit homo. (*) Mod. Un. Hist. vii. 266. liber ; per quam, si fuerit rusticus. Glanv. l. 11, c. 1.

() Spelm. Gloss. 435. (This is still expressed in that common form of speech, (-) De jure Sueonum, l. 1, c. 8. “of going through fire and water to serve another."

*) Decretal, part 2, caus. 2, qu. 5, dist. 7. Decretal, d. Tho, Rudborne, Hist. Muj. Winton, l. 4, c. 1.

dit. 50, c. 9, and Gloss. ibid. lo) Sp. L. b. xii. c. 5.

( Mod. Un. Hist. xxxii. 106. VOL. II.-37

577

tice by an act of parliament, in 3 Hen. III., according to Sir Edward Coke,(p) or rather by an order of the king in council.(9)

II. Another species of purgation somewhat similar to the former, but probably sprung from a presumptuous abuse of revelation in the ages of dark superstition, was the corsned, or morsel of execration: being a piece of cheese or bread of about an ounce in weight, which was consecrated with a form of exorcism; desiring of the Almighty that it might cause convulsions and paleness, and find no passage, if the man was really guilty; but might turn to health and nourishment if he was innocent;(r) as the water of jealousy among the Jews(8) was, by God's special appointment, to cause the belly to swell and the thigh to rot, if the woman was guilty of adultery. This corsned was then given to the suspected person, who at the same time also received the holy sacrament;(t) if, indeed, the corsned was not, as some have suspected, the sacramental bread itself, till the subsequent invention of transubstantiation preserved it from profane uses with a more profound respect than formerly. Our historians assure us that Godwin, earl of Kent, in the reign of king Edward the Confessor, abjuring the death of the king's brother, at last appealed to his corsned, “per buccellam deglutiendam abjuravit,(u) which stuck in his throat and killed him. This custom has long since been gradually abolished, though the remembrance of it still subsists in certain phrases of abjuration retained among the common people.(20) *346]

*However, we cannot but remark, that though in European countries

this custom most probably arose from an abuse of revealed religion, yet credulity and superstition will, in all ages and in all climates, produce the same or similar effects. And therefore we shall not be surprised to find that in the kingdom of Pegu there still subsists a trial by the corsned very similar to that of our ancestors, only substituting raw rice instead of bread. (2) And in the kingdom of Monomotapa they have a method of deciding lawsuits equally whimsical and uncertain. The witness for the plaintiff chews the bark of a tree endued with an emetic quality, which, being sufficiently masticated, is then infused in water which is given the defendant to drink. If his stomach rejects it he is condemned; if it stays with him he is absolved, unless the plaintiff will drink some of the same water; and if it stays with him also the suit is left undetermined.(y)

These two antiquated methods of trial were principally in use among our Saxon ancestors. The next, which still remains in force, though very rarely in ase, owes its introduction among us to the princes of the Norman line. And that is,

III. The trial by battel, duel, or single combat; which was another species of presumptuous appeals to Providence, under an expectation that Heaven would unquestionably give the victory to the innocent or injured party. The nature of this trial in cases of civil injury, upon issue joined in a writ of right, was fully discussed in the preceding book;(z) to which I have only to add that the 'trial by battel may be demanded at the election of the appellee, in either an appeal or an approvement; and that it is carried on with equal solemnity as that on a writ of right; but with this difference, that there each party might hire a champion, but here they must fight in their proper persons. And therefore, if *347]

the *appellant or approver be a woman, a priest, an infant, or of the

age of sixty, or lame, or blind, he or she may counterplead and refuse the wager of battel, and compel the appellee to put himself upon the country. Also peers of the realm, bringing an appeal, shall not be challenged to wage battel, on account of the dignity of their persons; nor the citizens of London, by special charter, because fighting seems foreign to their education and em(P) 9 Rep. 32.

(«) Ingulph. (9) 1 Rym. Ford. 228. Spelm. Gloss. 326. 2 Pryn. Rec. (0) AB, “I will take the sacrament upon it; may this Append. 20. Seld. Eadm. fol. 48.

morsel be my last;" and the like. () Spelm. Glosa. 439.

(*) Mod. Un. Hist. vii. 129. (8) Numb. ch. v.

Ibid. xv. 464. (9) LL. Canut. c 6.

() See book iii. page 337. ? This species of trial is now entirely abolished, by the 59 Geo. III. c. 46. Se 1 B. & 1. 405.-Chitty,

can

ployment. So likewise if the crime be notorious: as if the thief be taken with The mainour, or the murderer in the room with a bloody knife, the appellant may refuse the tender of battel from the appellee;(a) for it is unreasonable that an innocent man should stake his life against one who is already half convicted.

The form and manner of waging battel upon appeals are much the same as upon a writ of right; only the oaths of the two combatants are vastly more striking and solemn.(b) The appellee, when appealed of felony, pleads not guilty, and throws down his glove, and declares he will defend the same by his body; the appellant takes up the glove and replies that he is ready to make good the appeal, body for body. And thereupon the appellee, taking the book in his right hand and in his left the right hand of his antagonist, swears to this effect :- Hoc audi, homo, quem per manum teneo, &c.," "Hear this, O man, whom I hold by the hand, who callest thyself John by the name of baptism, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father, William by name, nor am any way guilty of the said folory. So help me God and the saints; and this I will defend against thee by my body, as this court shall award.” To which the appellant replies, holding the Bible and his antagonist's hand in the same manner as the other:-“Hear this, O man, whom I hold by the hand, who callest thyself Thomas by the name of baptism, that thou art perjured; and therefore perjured because that thou feloniously didst murder my *father, William by name. So help me God and the saints; and this I will prove against thee by my body, as this court

[*348 shall award."(c) The battel is then to be fought with the same weapons, viz., batons, the same solemnity, and the same oath against amulets and soicery,

that are used in the civil combat; and if the appellee be so far vanquished that he not or will not fight any longer, he shall be adjudged to be hanged immediately; and then, as well as if he be killed in battle, Providence is deemed to have determined in favour of the truth, and his blood shall be attainted. But if he kills the appellant, or can maintain the fight from sunrising till the stars appear in the evening, he shall be acquitted. So also, if the appellant becomes recreant, and pronounces the horrible word of craven, he shall lose his liberam legem and become infamous; and the appellee shall recover his damages, and also be forever quit, not only of the appeal, but of all indictments likewise for the same offence.

IV. The fourth method of trial used in criminal cases is that by the peers of Great Britain, in the court of parliament, or the court of the lord high steward, when a peer is capitally indicted : for in case of an appeal a peer shall be tried by jury.(d): Of this enough has been said in a former chapter ;(e) to which I shall now only add that, in the method and regulation of its proceedings, it differs little from the trial per patriam, or by jury; except that no special verdict can be given in the trial of a peer, (f) because the lords of parliament, or the lord high steward, (if the trial be *had in his court,) are judges sufficiently competent of the law that may arise from the fact ;

[*349 and except also that the peers need not all agree in their verdict, but the greater number, consisting of twelve at the least, will conclude and bind the minority.(g) ( 2 Hawk, P. C. 427.

mitted to prosecute in that court,) and that the prisoner (6) Flet. 2. 1, c. 34.2 Hawk. P. C. 426.

was the cause of his death; the prisoner, that he was inno(There is a striking resemblance between this process cent of the charge against him. Pott. Antiq. b. I. c. 19. and that of the conrt of Areopagus at Athens for murder, (4) 9 Rep. 30. 2 Inst. 49. wherein the prosecutor and prisoner were both sworn in See page 259. the most solemn manner; the prosecutor, that he was re- Hatt. 116. lated to the deceased, (for none but near relations were per- i Kelynge, 56, stat. 7 W. III. c. 3, & 11. Foster, 247.

? The last time that the trial by battel was awarded in this country was in the case of lord Rae and Mr. Ramsay, in the 7 Ch. I. The king, by his commission, appointed a constable of England to preside at the trial, who proclaimed a day for the duel, on which the combatants were to appear with a spear, a long sword, a short sword, and a dagger ; but the combat was prorogued to a further day, before which the king revoked the comnission. See an account of the proceedings, 11 Harg. St. Tr. 124. See also 3 book, 337. -CHRISTIAN.

3 The nobility are tried by their peers for treason and felony, and misprision of these; but in all other criminal prosecutions they are tried, like commoners, by a jury. 3 Inst. 30. See 1 book, 401, note 11.-CHRISTIAN.

V. The trial by jury, or the country, per patriam, is also that trial by thu peers of every Englishman which, as the grand bulwark of his liberties, is secured to him by the great charter :(h) nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legcle judicium parium suorum, vel per lcgem terræ.

The antiquity and excellence of this trial for the settling of civil property has before been explained at large.(i) And it will hold much stronger in criminal cases; since in times of difficulty and danger more is to be apprehended from the violence and partiality of judges appointed by the crown in suits between the king and the subject than in disputes between one individual and another to settle the metes and boundaries of private property. Our law has therefore wisely placed this strong and twofold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince; and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, despatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have with excollent forecast contrived that no man should be called to answer to the king for any capital crime unless upon the preparatory accusation of twelve or more of his fellow-subjects, the grand jury; and that the truth of every accu. sation, whether preferred in the shape of an indictment, information, or appeal, *35n]

*should afterwards be confirmed by the unanimous suffrage of twelve

of his equals and neighbours indifferently chosen and superior to all suspicion. So that the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate; not only from all open attacks, (which none will be so hardy as to make,) but also from all secret machinations which may sap and undermine it; by introducing new and arbitrary methods of trial, by justices of the peace, commissioners of the revenue, and courts of conscience. And, however convenient these may appear at first, (as doubtless all arbitrary powers, well executed, are the most convenient,) yet let it be again remembered that delays and little inconveniences in the forms of justice are the price that all free nations must pay for their liberty in more substantial matters; that these inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread to the utter disuse of juries in questions of the most momentous concern.

What was said of juries in general, and the trial thereby in civil cases, will greatly shorten our present remarks with regard to the trial of criminal suits ; indictments, informations, and appeals; which trial I shall consider in the same method that I did the former: by following the order and course of the proceedings themselves, as the most clear and perspicuous way of treating it.

When, therefore, a prisoner on his arraignment bath pleaded not guilty, and for his trial hath put himself upon the country, which country the jury are, the sheriff of the county must return a papel of jurors, liberos et legales homines, de vicineto; that is, freeholders, without just exception, and of the visne or neighbourhood; which is interpreted to be of the county where the fact is committed.(1) If the proceedings are before the court.of king's bench, there is *351 ]

time allowed, between the assignment and the trial, for a jury to be

*impanelled by a writ of venire facias to the sheriff, as in civil causes; and the trial in case of a misdemeanour is had at nisi prius, unless it be of such consequence as to merit a trial at bar; which is always invariably had when the prisoner is tried for any capital offence. But before commissioners of oyer and terminer and gaol-delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty-eight jurors, to try all felons that may be called upon their trial at that session; and therefore () See book iii. pago 379.

(3) 2 Hal. P. C. 264. ? Hawk. P. C. 403.

9 Hen. III. c. 20.

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