8. What is the general issue?—338.

The general issue is the plea of not guilty; upon which plea alone the prisoner can receive his final judgment of death.

9. Why is the general issue, not guilty, the most advantageous plea for a prisoner?-338, 339.

In case of an indictment of felony or treason, there can be no special justification put in by way of plea; for pleas of justification do, in effect, amount to the general issue, since, if true, the prisoner is most clearly not guilty. The jury also take notice of any defensive matter, and give their verdict accordingly, as effectually as if it were, or could be, specially pleaded.

10. By what words does the prisoner put himself upon his trial? -341.

The prisoner puts himself upon his trial by answering that "he will be tried by God and the country," if a commoner; and, if a peer, "by God and his peers." The clerk answers, "God send thee a speedy deliverance." Then follows the trial.

CHAPTER XXVII.

OF TRIAL AND CONVICTION.

1. What are the methods of trial and conviction of offenders?— 342-349.

They were formerly more numerous than at present. 1. The most ancient species of trial was that by ordeal. 2. Another was trial by the corsned, or morsel of execration. These two antiquated modes of trial were principally in use among our Saxon ancestors. 3. The trial by battel, duel, or single combat. This, which still remains in force, though not in use, owes its introduction to the princes of the Norman line. 4. Trial by high court of parliament, or the court of the lord high steward. 5. TRIAL BY JURY.

2. What was trial by ordeal?-342.

The trial 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, was of two sorts: either fire-ordeal or water-ordeal; the former being confined to persons of higher rank, the latter to the common people. When performed by deputy, the principal was to answer for the success of the trial.

3. When was trial by ordeal abolished?-345.

In the reign of Henry III.

4. In what criminal cases may trial by battel be demanded?-346. It may be demanded, at the election of the appellee, in either an appeal or an approvement.

5. When shall the trial take place in the court of parliament ?348.

When a peer is capitally indicted; for, in case of an appeal, he shall be tried by jury.

6. What is the sheriff's duty, when a prisoner has put himself upon the country?-350.

The sheriff of the county must return a panel of jurors, liberos et legales homines, de vicineto, that is, freeholders, without just exception, and of the visne or neighborhood, which is interpreted to be of the county where the fact is committed.

7. How, and for what, are challenges to jurors made?-352.

Challenges may be made, either on the part of the king, or on that of the prisoner, and either to the whole array, or to the separate polls, for cause; for the very same reasons that they may be made in civil causes.

8. What other species of challenge, besides the challenge for cause, is allowed to the prisoner?-353.

In criminal cases, or at least in capital ones, there is, in favorem vitæ, allowed to the prisoner an arbitrary and capricious

species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge.

9. What number of peremptory challenges is the prisoner allowed? -354.

Thirty-five.

10. May a tales be awarded in criminal prosecutions?—354, 355.

It may, if, by reason of challenges, or the default of the jurors, a sufficient number cannot be had of the original panel. 11. What is done when the jury is sworn, if it be a cause of any consequence?-355.

The indictment is usually opened, and the evidence marshalled, examined, and enforced, by counsel for the crown, or prosecution.

12. When only shall counsel be allowed a prisoner upon his trial, upon the general issue, in any capital crime?-355.

It is a settled rule, at common law, that the prisoner shall be allowed no counsel, unless some point of law shall arise proper to be debated.

13. For what purposes do the judges allow a prisoner counsel ?355, 356.

To instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact.

14. What rules, as to presumptive evidence, does Sir Matthew Hale lay down?—359.

Two rules, most prudent and necessary to be observed: 1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account how he came by them, unless an actual felony be proved of such goods; and, 2. Never to convict any person of murder or manslaughter till at least the body be found dead.

15. What is the difference, as to the form of verdict, in civil and criminal cases?-360.

In a criminal case which touches life or member, the jury cannot give a privy verdict.

16. May the verdict be either general or special?-361.

It may be either general, guilty or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be murder, manslaughter, or no crime at all.

17. What if the verdict be notoriously wrong ?-361.

The jury may be punished, and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner.

18. What follows the verdict of the jury?-361, 362.

If the jury find the prisoner not guilty, he is then forever quit and discharged of the accusation, except he be appealed of felony within the time limited by law. But if the jury find him guilty, he is then said to be convicted of the crime whereof he stands indicted.

CHAPTER XXVIII.

OF THE BENEFIT OF CLERGY.*

1. After trial and conviction, what is the principal intervening circumstance that suspends or arrests judgment?-365.

The benefit of clergy.

2. In what had the benefit of clergy its origin ?-365.

Clergy, the privilegium clericale, or, in common speech, the benefit of clergy, had its origin in the exemption of the persons of clergymen from criminal process, before the secular judge, in a few particular cases.

3. By what means, and how far were these exemptions extended?— 366.

By their canons and constitutions the clergy endeavored at,

* Learning upon this topic is a curiosity, but now of little use. The statute 7 and 8 George IV., c. 28, enacted, (s. 6.) that benefit of clergy, with respect to persons convicted of felony, shall be abolished, &c.

and obtained, a vast extension of these exemptions, as well in regard to the crimes themselves, of which the list became quite universal, as in regard to the persons exempted; among whom were at length comprehended, not only every little subordinate officer belonging to the church or clergy, but even many that were totally laymen.

4. Was the privilegium clericale universally allowed?—366.

A total exemption of the clergy from secular jurisdiction could never be thoroughly effected; and, therefore, though it was allowed in some capital cases, yet it was not universally allowed.

5. What was the practice in those particular cases ?—366.

The use was for the bishop, or ordinary, to demand his clerks to be remitted out of the king's courts, as soon as they were indicted; concerning the allowance of which demand there was for many years a great uncertainty; till, at length, it was finally settled in the reign of Henry the Sixth, that the prisoner should first be arraigned; and might either then claim his benefit of clergy, by way of declinatory plea, or after conviction, by way of arresting judgment. This latter way was most usually practiced.

6. To whom was the privilegium clericale extended?-366, 367.

Originally, the law was held that no man should be admitted to it but such as had the habitum et tonsuram clericalem. But, in process of time, a much wider and more comprehensive criterion was established; every one that could read being accounted a clerk, or clericus, and allowed the benefit of clerkship.

7. What restriction upon the privilege was enacted in the reign of Henry VII.?-367.

It being found that as many laymen as divines were admitted to the privilege of clergy, by statute 4 Henry VII., c. 13, a distinction was drawn between mere lay scholars and clerks that were really in orders. And though it was thought reasonable still to mitigate the severity of the law with regard to the former, yet they were not put upon the same footing with actual clergy;