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, he may plead such attainder in bar to any subsequent indictment or appeal, for the same or for any other felony. But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex. 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 in 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 at

tainted of one felony, is afterwards indicted as principal in another, 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. 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, and may plead over to the felony the general issue, not guilty. 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, 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 defence 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.

When the prisoner hath 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 monosyllables 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; prít, praesto sum, or paratus verificare. This is therefore a replication on behalf of the king viva voce at the bar; which was formerly the course in all pleadings, as well in civil as in criminal causes. By this replication the king and the prisoner are therefore at issue; for immediately upon issue joined it is inquired of the prisoner, by what trial he will make his innocence appear ? 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, if a commoner; and, if a peer, by God and his peers; the indictment, if in treason, is taken pro confesso.

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 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.

CHAPTER XXVII.

OF TRIAL AND CONVICTION.

THE several methods of trial and conviction of offenders established by the laws of England, were formerly numerous, but now it is by jury. The trial by jury, or the country, is that trial by the peers of every Englishmen, which, as the grand bulwark of his liberties, is secured to him by the great charter: "nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terræ.” But the founders of the English law have with excellent 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 accusation, whether preferred in the shape of indictment, information, or appeal, 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.

When a prisoner on his arraignment has 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 panel 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. If the proceedings are before the court of king's bench, there is time allowed, between the arraignment and the trial, for a jury to be empannelled by writ of venire facias to the sheriff, as in civil causes: and the trial in case of a misdemeanor 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.