Book XIV.
CONCERNING CRIMINAL PLEAS WHICH BELONG TO THE CROWN.
CHAP. I.
Having thus far treated of those Civil Pleas which are discussed in Court, it remains for us to speak concerning Criminal Pleas. When, therefore, any one is charged with the King’s death, or with having promoted a sedition in the Realm or Army,[492] either a certain Accuser appears, or not. If no certain Accuser should appear, but the public voice alone accuses him,[493] then, from the first, the accused shall be safely attached, either by proper Pledges, or imprisonment.[494] The truth of the fact shall, then, be inquired into, by means of many and various inquisitions and interrogations, made in the presence of the Justices, and that, by taking into consideration the probable circumstances of the facts, and weighing each conjecture that tends in favor of the accused, or makes against him; because he must purge himself by the Ordeal,[495] or entirely absolve himself from the Crime imputed to him. But if on the trial by the Ordeal, a person is convicted of a Capital Crime, then the Judgment is of life and members which are at the King’s mercy,[496] as in other Pleas concerning Felony.
Should, however, a certain accuser appear in the first instance, he shall be attached by Pledges, if he can produce any such, to prosecute his Suit. But, if he is unable to adduce any Pledges, it is usual to trust to his solemn promise,[497] as in all Pleas concerning Felony. Yet is it customary in these cases to confide in a promise, least by exacting too hard a security, others might be deterred from making a similar accusation.[498] Security having been taken from the Accuser to prosecute his Plea, then, the party accused, is, as we have observed, usually attached by safe and secure Pledges; or, if he cannot produce any pledges, he shall be cast into Prison. But, in all Pleas of Felony, the Accused is generally dismissed on pledges,[499] except in a Plea of Homicide, where, for the sake of striking terror, it is otherwise enacted. The next step usually resorted to, is to appoint a day to the parties, pending which, the usual Essoins are allowed to be cast.
At length, the Accuser should propose his charge: that he had seen, or by some other proof in Court, that he perfectly well knew, that the Accused had conspired or done something against the King’s life; or to move a sedition in the Realm or Army; or to have consented, or given Counsel, or delegated an authority, towards effecting such object; and the Accuser should allege, that he was prepared to prove his charge, according to the direction of the Court.[500]
Should the accused, on the other hand, deny, in due manner[501] in Court, every thing the other had asserted, it is usual to decide the Plea by the Duel. And here it should be observed, that from the moment the Duel is waged, in Pleas of the kind we are now treating of, neither of the parties can add nor diminish any thing from the words employed in waging the Duel, or, in any other measure decline or recede from his undertaking, without being held as conquered, and liable to the penal consequences.
Nor can the parties be afterwards reconciled to each other, by any other mode, than the King’s License, or that of his Justices. But if the Appellor be conquered, he shall be amerced to the King, the nature of which has been sufficiently explained in a former part of this work.
What penalties also and infamy he shall incur, if conquered, have been sufficiently detailed. If the Accused be conquered, the Judgment that awaits him has been mentioned just before, to which may be added, the confiscation of all his Chattels, and the perpetual Disinherison of his Heirs.[502]
Every free Man of full age is admissible as an Accuser, in a prosecution of this kind. Should, however, a Minor bring an Appeal, he shall be attached, in the manner we have before stated. A Rustic[503] is also admissible; but a Woman shall not be received to make an accusation in any plea of Felony, unless in some particular instances, concerning which we shall presently speak. But the Accuser may, in Pleas of the kind we are discussing, decline the Duel, either on account of his age, or by reason of his being adjudged to have received a Mayhem.[504]
But the age of the party, in such a case, ought to be sixty years or upwards. Mayhem signifies the breaking of any bone, or injuring the head, either by wounding or abrasion. In such case, the Accused is obliged to purge himself by the Ordeal, that is, by the hot Iron, if he be a free Man—by water, if he be a Rustic.[505]