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[stances, 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. 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.

(m) 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. p. 391.

(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 & 8 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. 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. (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 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!

CHAPTER XXII.

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, 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 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. 344.

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

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[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 (ƒ). 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 See also Mirrour, c. 3, s. 23.

(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.

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

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

[been well remarked, to the most dubious crime in the world the most dubious proof of innocence (h).

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, a person suspected by Creon of a misdemeanor, declares himself ready "to handle hot iron and to walk over fire," in order to manifest his innocence; which, the scholiast tells us, was then a very usual purgation (i). And Grotius gives us many instances of water-ordeal in Bithynia, Sardinia, and other places (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 grounds: for which Stiernhook gives the reason, "non defuit illis operæ et laboris pretium; semper enim ab ejusmodi judicio, aliquid lucri sacerdotibus obveniebat" (m). 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 to disuse and abolish this trial en

(h) Sp. L. b. 12, c. 5. (i) V. 270.

(k) Grot. on Numb. v. 17. And see Mod. Univ. Hist. vii. 266.

(1) Spelm. Gloss. 435.

(m) De Jure Sueon. 1. 1, c. 8.

(n) Decret. part 2, caus. 2, qu. 5, dist. 7; Decret. lib. 3, tit. 50, c. 9; and Gloss. ibid.

[tirely in our courts of justice by an act of parliament in the third year of Henry the third, according to Sir Edward Coke (o); or rather by an order of the king in council (p).

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 (g). As the water of jealousy, among the Jews, was, by God's special appointment, to cause the belly to swell, and the thigh to rot, if the woman was guilty of adultery (r). This corsned, then, was given to the suspected person, who at the same time also received the holy sacrament(s); 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;" which stuck in his throat and killed him (t). This custom has long since fallen into

(0) 9 Rep. 32. It had been abolished in Denmark above a century before. (Mod. Univ. Hist. xxxii. 105.)

(p) 1 Rym. Foed. 228; Spelm. Gloss. 326; 2 Pryn. Rec. Append. 20; Seld. Eadm. fol. 48.

(4) Spelm. Gloss. 439.

(r) Numb. v..

(s)" Si quis alteri ministran

tium accusetur et amicis destitutus
sit cum sacramentales non habeat,
vadat ad judicium quod Anglicè
dicitur 'corsned,' et fiat sicut Deus
velit, nisi super sanctum corpus
Domini permittatur ut se purget."
-Wilk. Leges Ang. Sax. LL.
Canut. c. 6.
(t) Ingulph.

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