oner 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, prit, 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. And that was done in the concisest manner; for when the pleader intended to demur he expressed his demurrer in a single word, "judgment," signifying that he demanded judgment whether the writ, declaration, plea, etc., either in form or matter, were sufficiently good in law and if he meant to rest on the truth of the facts pleaded, he expressed that also in a single syllable, "prit," signifying that he was ready to prove his assertions: as may be observed from the year-books and other ancient repositories of law. By this replication the king and the prisoner are therefore at issue.

The joining of issue, which, though now usually entered on the record, is not otherwise joined in any part of the proceedings, seems to be clearly the meaning of this obscure expression, which has puzzled our most ingenious etymologists, and is commonly understood as if the clerk of the arraigns, immediately on plea pleaded, had fixed an approbrious name on the prisoner by asking him, "culprit, how wilt thou be tried?" For immediately upon issue joined it is inquired of the prisoner by what trial he will make his innocence appear. This form has at present reference to appeals and approvements only wherein the appellee has his choice either to try the accusation by battle or by jury.

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; 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.

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; the manner of which will be considered at large in the next chapter.

Chapter XXVII.

OF TRIAL AND CONVICTION.

342-365.

The author names and describes as the four first methods of trial: 1. Ordeal. 2. Morsel of execration. 3. Battle. 4. By the peers of Great Britain in the Court of Parliament or the Court of the Lord High Steward.

Trial by Jury.

V. The trial by jury or the country, per patriam, is also, that trial by the peers of every Englishman, 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 terrae."

When a prisoner on his arraignment hath 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 neighborhood; which is interpreted to be of the county where the fact is committed.

In cases of high treason, whereby corruption of blood may ensue (except treason in counterfeiting the king's coin or seals), or misprision of such treason, it is enacted, by statute 7, W. III. c. 3, first, that no person shall be tried for any such treason, except an attempt to assassinate the king, unless the indictment be found within three years after the offence committed; next, that the prisoner shall have a copy of the indictment (which includes the caption), but not the names of the witnesses, five days at least before the trial; that is, upon the true construction of the act, before his arraignment, for then is the time to take any exceptions thereto by way of plea or demurrer; thirdly, that he shall also have a copy of the panel of jurors two days before his trial; and, lastly, that he shall have the same compulsive process to bring in his witnesses for him as was usual to compel their appearance against him. And by statute 7 Anne, c. 21 (which did not take place till after the decease of the late pretender), all persons indicted for high treason or misprision thereof shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impanelled, with their professions and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses, the better to prepare him to make his challenges and defence. But this last act, so far as it affected indictments for the inferior species of high treason, respecting the coin and the royal seals, is repealed by the statute 6 Geo. III. c. 53, else it had been impossible to have tried those offences in the same circuit in which

they are indicted: for ten clear days between the finding and the trial of the indictment will exceed the time usually allotted for any session of oyer and terminer. And no person indicted for felony is, or (as the law stands) ever can be, entitled to such copies before the time of his trial.

When the trial is called on, the jurors are to be sworn, as they appear, to the number of twelve, unless they are challenged by the party.

Challenges.

Challenges may here 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 the very same reasons that they may be made in civil causes. Challenges for cause may be without stint in both criminal and civil trials. But in criminal cases, or at least in capital ones, there is, in favorem vitae, 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.

This privilege of peremptory challenges, though granted to the prisoner, is denied to the king by the statute 33 Edw. I. st. 4, which enacts that the king shall challenge no jurors without assigning a cause certain, to be tried and approved by the court. However, it is held that the king need not assign his cause of challenge till all the panel is gone through, and unless there cannot be a full jury without the person so challenged; and then, and not sooner, the king's counsel must show the cause, otherwise the juror shall be sworn.

The peremptory challenges of the prisoner must, however, have some reasonable boundary; otherwise he might never be tried. This reasonable boundary is settled by the common law to be the number of thirty-five; that is, one under the number of three full juries. For the law judges that five-and-thirty are fully sufficient to allow the most timorous man to challenge through mere caprice; and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all. And therefore it dealt with one who peremptorily challenges above thirty-five, and will not retract his challenge, as with one who stands mute or refuses his trial, by sentencing him to the peine forte et dure in felony, and by attainting him in treason. And so the law stands at this day with regard to treason of any kind.

But by statute 22 Hen. VIII. c. 14 (which with regard to felonies, stands unrepealed by statute 1 and 2 Ph. and M. c. 10), by this statute, I say, no person arraigned for felony can be admitted to make any more than twenty peremptory challenges. But how if the prisoner will peremptorily challenge twenty-one? what shall be done? The old opinion was, that judgment of peine forte

et dure should be given, as where he challenged thirty-six at the common law; but the better opinion seems to be that such challenge shall only be disregarded and overruled.

If by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales may be awarded as in civil causes, till the number of twelve is sworn, "well and truly to try, and true deliverance make, between our sovereign lord the king and the prisoner whom they have in charge; and a true verdict to give according to their evidence."

When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshaled, examined and enforced by the counsel for the crown, or prosecution. But it is a settled rule at common law that no counsel shall be allowed a prisoner upon his trial, upon the general issue in any capital crime, unless some point of law shall arise proper to be debated. A rule which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. For upon what face of reason can that assistance be denied to save the life of a man which yet is allowed him in prosecutions for every petty trespass? Nor indeed is it, strictly speaking, a part of our ancient law; for the Mirror, having observed the necessity of counsel in civil suits, "who know how to forward and defend the cause, by the rules of law and customs of the realm," immediately afterwards subjoins, "and more necessary are they for defence upon indictments and appeals of felony than upon other venial causes." And the judges themselves are so sensible of this defect that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact; for as to matters of law arising on the trial, they are entitled to the assistance of counsel. But, lest this indulgence should be intercepted by superior influence in the case of state criminals, the legislature has directed, by statute 7 W. III. c. 3, that persons indicted for such high treason as works a corruption of the blood, or misprision thereof (except treason in counterfeiting the king's coin or seals), may make their full defence by counsel, not exceeding two, to be named by the prisoner and assigned by the court or judge: and the same indulgence, by statute 20 Geo. II. c. 30, is extended to parliamentary impeachments for high treason, which were excepted in the former act.

The doctrine of evidence upon pleas of the crown is in most respects the same as that upon civil actions. There are, however,

a few leading points wherein, by several statutes and resolutions, a difference is made between civil and criminal evidence.

First, in all cases of high treason, petit treason and misprision of treason, by statutes I Edw. VI. c. 12, and 5 and 6 Edw. VI. c II, two lawful witnesses are required to convict a prisoner; unless he shall willingly and without violence confess the same. By statute 1 and 2 Ph. and M. c. 10, a further exception is made to treasons in counterfeiting the king's seals or signatures, and treasons concerning coin current within this realm: and more particularly, by c. 11, the offences of importing counterfeit foreign money current in this kingdom, and impairing, counterfeiting, or forging any current coin. The statutes 8 and 9 W. III. c. 25, and 15 and 16 Geo. II. c. 28, in their subsequent extensions of this species of treason, do also provide that the offenders may be indicted, arraigned, tried, convicted, and attainted by the like evidence and in such manner and form as may be had and used against offenders for counterfeiting the king's money. But, by statute 7 W. III. c. 3, in prosecutions for those treasons to which that act extends, the same rule (of requiring two witnesses) is again enforced; with this addition, that the confession of the prisoner, which shall countervail the necessity of such proof, must be in open court. In the construction of which act, it hath been holden that a confession of the prisoner taken out of court, before a magistrate or person having competent authority to take it, and proved by two witnesses, is sufficient to convict him of treason. But hasty, unguarded confessions, made to persons having no such authority, ought not to be admitted as evidence under this statute. And indeed, even in cases of felony at the common law, they are the weakest and most suspicious of all testimony: ever liable to be obtained by artifice, false hopes, promises of favor, or menaces; seldom remembered accurately, or reported with due precision; and incapable in their nature of being disproved by other negative evidence. By the same statute, 7 W. III., it is declared that both witnesses must be to the same overt act of treason, or one to one overt act and the other to another overt act, of the same species of treason, and not of distinct heads or kinds; and no evidence shall be admitted to prove any overt act not expressly laid in the indictment. In cases of indictments for perjury this doctrine is better founded; and there our law adopts it; for one witness is not allowed to convict a man for perjury; because then there is only one oath against another. In cases of treason also there is the accused's oath of allegiance to counterpoise the information of a single witness; and that may perhaps be one reason why the law requires a double testimony to convict him; though the principal reason undoubtedly is to secure the subject