Page:Notes and Queries - Series 10 - Volume 12.djvu/553

 10 B. xii. DEC. 4, 1909.] NOTES AND QUERIES.

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the phrase, along with couvre feu, he would j seem to have had substantial grounds for his j belief. It should also be remembered that the term " prisoner " was in those early days non-existent, the first recorded use of it occurring during the fourteenth century. The current legal terms employed for the accused were then reus and culpatus ; hence there was every circumstance at work to pro- duce such a word in English as " culprit," if the thing itself would only appear.

Blackstone in his ' Commentaries, 1 vol. iv. chap, xxvi., ed. Wendell (New York, 1852), discusses the cul. prit etymology at some length, and sums up as follows :

" How our courts came to express a matter of this importance in so odd and obscure a manner . . . .can hardly be pronounced with certainty. It may, perhaps, however, be accounted for by supposing that there were at first short notes to help the memory of the clerk, and remind him what he was to reply ; or else it was the short method of taking down in court upon the minutes, the replication and averment, cul. prit ; which afterwards the ignorance of succeeding clerks adopted for the very words to be by them spoken.''

Here follows a foot-note, which, as it inclines to Hickie's derivation, I will also quote :

" Of this ignorance we may see daily instances in the abuse of two legal terms of ancient French : one the prologue to all proclamations, Oyez, or ' Hear ye,' which is generally pronounced most unmeaningly, ' O, yes ' ; the other, a more pardonable mistake, viz., when a jury are all sworn, the officer bids the crier number them, for which the word in law French is Countez ; but which we now hear pronounced in very good English, ' Count these. "

For MB. WHITWELL'S benefit I will now give the note appended by Prof. E. Christian of Cambridge (1774-1823), same edition, pp. 340-41, as it demolishes in great part Blackstone' s view of the matter :

" The learned judge's explanation of prit, from prcesto sum, or paratus verificare, however ingenious, is certainly inconsistent both with the principles and practice of special pleading. After the general issue, or the plea of not guilty, there could be no replication ; and the words paratus verificare could not possibly have been used. This plea in Latin was entered thus upon the record : Non inde est culpabilis, et pro bono et malo ponit se super patriam ; after this, the attorney general, the king's attorney, or clerk of assize would only join issue by facit similiter, or ' he doth the like.' If, then, I might be allowed to indulge in a conjecture of my own, I should think that prit was an easy corruption of pnt, written for ponit by the clerk, as a minute that was joined, or ponit se super patriam ; or pnt se might be converted into prist or prest, as it is sometimes written. Cul was probably intended to denote the plea, and prit, the issue ; and these syllables being pronounced aloud by the clerk to give the court and prisoner an opportunity

of hearing the accuracy of the minute, and being immediately followed by the question, ' How wilt thou be tried ? ' naturally induced the ignorant part of the audience to suppose that ' culprit ' was an appellation given to the prisoner. As a confirmation of the conjecture that prit is a corruption of pnt, the clerk of the arraigns at this day, immediately upon the arraignments writes upon the indictment over the name of the prisoner pnts ; and Roger North informs us that in ancient times, when pleadings in courts were ore tenus, if a Serjeant in the common pleas said judgment, that was a demurrer ; if prit, that was an issue to the country."

From the foregoing opinions of different writers it is by no means clear whether cul. prit is an abbreviation of the Latin culpabilis and prcesto sum, or of the French culpable and prest, the former, indeed, being the more likely ; besides which the train of reasoning on which this etymology of Black- stone's is based is almost entirely conjec- tural ; while there is probability in Chris- tian's suggestion that prit itself is a ghost- word, the real word being ponit in its shortened form. On the other hand, it seems far more plausible that the phrase qu'il paroit should at an early date have given rise to "culprit" (the "Let him appear 2 * of the usher being caught up by the expec- tant crowd in court, and converted into an appellation for the prisoner, when a proper designation for the accused was lacking to the language, in the same way that the expressions Oyez and Contez were corrupted into " O, yes, n and " Count these ") than that such an awkward circumlocution as " Culpable ; prest d'averrer nostre bille, n should have been contracted, as is alleged, into two words, which in turn coalesced into the one now remaining. Such an origin is more probable, too, than Christian's sup- position that the clerk's uttering of the two syllables gave to the ignorant members of the audience the notion of their being a legal name for the accused man. In order, there- fore, to settle finally the legitimacy of the derivation accepted by the ' N.E.D.,' a further search will, I fear, be necessary among the court records of the Norman and Plantagenet kings.

Last, and not least, let me remind MB. WHITWELL that Prof. Skeat, in his 'Ety- mological Dictionary l parts company alto- gether with the ' N.E.D.* Rejecting in toto the obscure compound cul. prit, he remarks s.v.

" Generally believed to stand for culpate, an Englished form of the Low Latin culpatus, i.e., the accused. .. .The r has been inserted as in ' cartridge.' "

He also instances Fr. encre and chanvre, from Lat. encaustum and cannabis, as well