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equivalent to a conviction, the same judgment, the same corruption of blood, and the same forfeitures always attended it, as in other cases of conviction (e). And very lately to the honour of our laws, it hath been enacted by statute 12 Geo. III. c. 20. that every person who, being ar raigned for felony and piracy, shall stand mute or not answer directly to the offence, shall be convicted of the same, and the same judgment and execution (with all their consequences in every respect) shall be thereupon awarded, as if the person had been convicted by verdict or confession of the crime (11). And thus much for the demesnor of a prisoner upon his arraignment, by standing mute; which now, in all cases, amounts to a constructive confession.

II. The other incident to arraignments, exclusive of the plea, is the pr soner's actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment: but it is usu ally very backward in receiving and recording such confession, out of tenderness to the life of the subject; and will generally advise the prisoner to retract it, and plead to the indictment (ƒ).

But there is another species of confession, which we read much of in our ancient books, of a far more complicated kind, which is called approvement. And that is when a *person, indicted of treason or [*330] felony, and arraigned for the same, doth confess the fact before plea pleaded; and appeals or accuses others, his accomplices, in the same crime in order to obtain his pardon. In this case he is called an approver or pro. ver, probator, and the party appealed or accused is called the appelles. Such approvement can only be in capital offences; and it is, as it were, equivalent to an indictment, since the appellee is equally called upon to answer it and if he hath no reasonable and legal exceptions to make to the person of the approver, which indeed are very numerous, he must put himself upon his trial, either by battel, or by the country; and if vanquished or found guilty, must suffer the judgment of the law, and the approver shall have his pardon ex debito justitae. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver shall receive judgment to be hanged, upon his own confession of the indictment; for the condition of his pardon has failed, viz. the conviction of some other person, and therefore his conviction remains absolute.

But it is purely in the discretion of the court to permit the approved thus to appeal, or not: and, in fact, this course of admitting approvements hath been long disused: for the truth was, as sir Matthew Hale observes, that more mischief hath arisen to good men by these kind of approvements, upon false and malicious accusations of desperate villains than, benefit to the public by the discovery and conviction of real offenders. And therefore in the times when such appeals were more frequently admitted, great strictness and nicety were held therein (g): though, since their

(e) 2 Hawk. P. C. 331. (f) 2 Hal. P. C. 225.

(1) Two instances have occurred since the passing of this statute, of persons who refused to plead, and who in consequence were condemned and executed. One was at the Old Bailey, for murder, in 1777; the other was for burglary, at the summer assises at Wells, in 1792. It might perhaps have been a greater improvement of the law, if the prisoner's silence had been considered a plea of VOL II

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(g) 2 Hal. P. C. ch. 29. 2 Hawk. P. Ch. 24.

not guilty, rather than a confession. For it would operate more powerfully as an example, and be more satisfactory to the minds of the public, if the prisoner should suffer death after a public manifestation of his guilt by evidence, than that he should be ordered for execution only from the presumption which arises from his obstinate silence. See note 8, p. 324, as to law of New-York.

discontinuance, the doctrine of approvements is become a matter of mor curiosity than use. I shall only observe, that all the good whatever it be, than can be expected from this method of approvement, is fully provided for in the cases of coining, robbery, burglary, house-breaking, horse-steal

ing, and larceny to the value of five shillings from shops, warehouses, [*331] stables, and coach-houses, by statutes 4 & 5 W. & M. c. 8. *6 &

7 W. III. c. 17, 10 & 11 W. III. c. 23, and 5 Ann. c. 31, which enact, that if any such offender, being out of prison, shall discover two or more persons, who have committed the like offences, so as they may be convicted thereof; he shall in case of burglary or house-breaking receive a reward of 401. and in general be entitled to a pardon of all capital offences, excepting only murder and treason; and of them also in the case of coining (h). And if any such person, having feloniously stolen any lead, iron, or other metal, shall discover and convict two offenders of having illegally bought or received the same, he shall by virtue of statute 29 Geo. II. c. 30. be pardoned for all such felonies committed before such discovery (12). It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or, as it is generally termed, king's evidence) against his fellows; upon an implied confidence, which the judges of gaol-delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree (i) (13).

(h) The pardon for discovering offences against the coinage act of 15 Geo. II. c. 28. extends only to all such offences.

(12) These acts are now repealed; see notes 17 and 18, p. 294, 295, ante.

(13) In the case of Mrs. Rudd, in which this subject is clearly and ably explained by lord Mansfield, and again by Mr. J. Aston, in delivering the opinion of all the judges, (Cowp. 331.) it is laid down that no authority is given to a justice of peace to pardon an offender, and to tell him he shall be a witness at all events against others. But where the evidence appears insufficient to convict two or more without the testimony of one of them, the magistrate may encourage a hope that he, who will behave fairly and disclose the whole uth, and bring the others to justice, shall .imself escape punishment. But this discretionary power exercised by the justices of peace is founded in practice only, and cannot control the authority of the court of gaol-delivery, and exempt at all events the accomplice from being prosecuted. A motion is always made to the judge for leave to admit an accomp ice to be a witness, and unless he should see some particular reason for a contrary conduct, he wil. prefer the one to whom this encouragement has been given by the justice of peace. This admission to be a witness amounts to a promise of a recommendation to mercy, upon condition that the accomplice make a full and fair disclosure of all the circumstanres of the crime, for which the other prison

(i) The king v. Rudd; Mich. 16 Geo. III. on a case reserved from the Old Bailey, Oct. 1775

ers are tried, and in which he has been concerned in concert with them. Upon failure on his part with this condition, he forfeits all claim to protection. And upon a trial some years ago at York, before Mr. J. Buller, the ac complice, who was admitted a witness, denied in his evidence all that he had before confess ed, upon which the prisoner was acquitted, but the judge ordered an indictment to be preferred against his accomplice for the same crime, and upon his previous confession, and other circumstances, he was convicted and executed. And if the jury were satisfied with his guilt, there can be no question with regard both to the law and justice of the case.

The learned commentator says, that the ac complice thus admitted a witness, shall not afterwards be prosecuted for that or any other previous offence of the same degree. Mrs. Rudd's case does not warrant the extent > that position, for the decision of that case, and what is advanced by Mr. J. Aston (Cowp 341.), and as the editor conceives the reason and principles of this doctrine, will not extend the claim of the witness to mercy beyond those offences in which he has been connected with the prisoners, and concerning which he has previously undergone an examination. And with regard to these crimes he may be crossexamined by the counsel for the prisoner, but of course he may refuse to criminate himsel

CHAPTER XXVI.

OF PLEA, AND ISSUE (1).

We are now to consider the plea of the prisoner, or defensive matter alleged by him on his arraignment, if he does not confess or stand mute. This is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.

Formerly there was another plea, now abrogated, that of sanctuary; which is however necessary to be lightly touched upon, as it may give some light to many parts of our ancient law: it being introduced and continued during the superstitious veneration that was paid to consecrated ground in the times of popery. First then, it is to be observed, that if a person accused of any crime (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned) had fled to any church, or church-yard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offence; and thereupon took the oath in that case provided, viz. that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return

of other charges, against which that prosecution affords him no protection. The evidence and information of an accomplice taken ac. cording to the statutes 1 & 2 Ph. & M. c. 13. and 2 and 3 Ph. & M. c. 10. may be read against a prisoner, upon proof of the death of the accomplice; but it can have no effect, unless it is corroborated in the same manner as his living testimony. Westbeer's case, Leach, 14. See further, as to the evidence of an accomplice, 1 Chitty's Crim. L. 603. and Stark. an Evid. part IV. 17.

It has now been solemnly decided that an accomplice admitted as king's evidence, and performing the condition on wihch he is admitted as a witness, is not entitled, as matter uf right, to be exempt from prosecution for other offences with which he is charged, but that it will be matter in the discretion of the Judge whether he will recommend him for a pardon or not. Rex v. Lee, R. and R. C. C. 361; Rex v. Brunton, id. 454. Even the equitable claim of an accomplice to a pardon, on condition of his making a full and fair confession, does not extend to prosecutions for other offences in which he was not concerned with the prisoner: with respect to such offences, there fore, he

not bound to answer on cross-examination. Lee's, Duce's, and West's cases, 1 Phil. Ev. 37. But the judges will not, in general, admit an accomplice as king's evidence, Although applied to for that purpose by the ouns for the prosecution, if it appear that ae is charged with any other felony than that on the trial of which he is to be a witness. 2 . and P. 411; Car. Cr. L. 62. Where an accomplice is eonfirmed in his evidence ainst one prisoner, but not with respect to

another, both may be convicted, if the jury think the accomplice deserving of credit. Rex v. Dawber and others, 2 Stark. N. P. C. 34; Car. Cr. L. 67, 2d ed. And see Rex v. Daw ber, 3 Stark. 34-5, n. where it is said, that if the testimony of an accomplice be confirmed so far as it relates to one prisoner, but not as to another, the one may be convicted on the testimony of the accomplice, if the jury deem him worthy of credit. An accomplice does not require confirmation as to the person charged, provided he is confirmed in the parti culars of his story. Rex v. Birkett and Bra dy, R. and R. C. C. 251. And the corrobora tion of his evidence need not be on every ma terial point, but he must be so confirmed as te convince the jury that his statement is correct and true. Rex v. Barnard, 1 C. and P. 88. A person indicted for a misdemeanor may be legal. ly convicted upon the uncorroborated evidence of an accomplice. Rex v. Jones, 2 Camp. 132. So may a person indicted for a capita offence. Jordaine v. Lashbrook, 7 T. R. 609. But the testimony of accomplices alone is seidom of sufficient weight with a jury to convict the offenders; the temptation to commit perjury being so great, where the witness by accusing another may escape himself. The practice, therefore, is to advise the jury to regard the evidence of an accomplice, only so far as he may be confirmed, in some part of his testimony, by unimpeachable testimony Phil. Ev. 34, 3d ed. And see id. c. 4, § 2, and the several authorities there cited and consi dered.

(1) As to pleas in general, in original pra ceedings, see 1 Chit. C. L. 2 ed. 432 to 475

without leave from the king; he by this means saved his life, if he [*333] observed the conditions of the oath, by going with a cross in *his hand, and with all convenient speed, to the port assigned, and embarking. For if, during this forty days' privilege of sanctuary, or in his road to the sea-side, he was apprehended and arraigned in any court, for this felony, he might plead the privilege of sanctuary, and had a right to be remanded, if taken out against his will (a). But by this abjuration his blood was attainted, and he forfeited all his goods and chattels (¿). The immunity of these privileged places was very much abridged by the statutes 27 Hen. VIII. c. 19. and 32 Hen. VIII. c. 12. And now by the statute 21 Jac. I. c. 28. all privilege of sanctuary, and abjuration consequent thereupon, is utterly taken away and abolished.

Formerly also the benefit of clergy used to be pleaded before trial or conviction, and was called a declinatory plea; which was the name also given to that of sanctuary (c). But, as the prisoner upon a trial has a chance to be acquitted, and totally discharged; and, if convicted of a cler gyable felony, is entitled equally to his clergy after as before conviction; this course is extremely disadvantageous; and therefore the benefit of clergy is now very rarely pleaded; but, if found requisite, is prayed by the convict before judgment is passed upon him (2).

I proceed, therefore, to the five species of pleas before mentioned.

I. A plea to the jurisdiction, is where an indictment is taken before a court that hath no cognizance of the offence; as if a man be indicted for a rape at the sheriff's tourn, or for treason at the quarter sessions: in these, or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged (d) (3).

II. A demurrer to the indictment. This is incident to criminal [*334] cases, as well as civil, when the fact alleged is allowed to be

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true, but the prisoner joins issue upon some point of law in the indictment, by which he insists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man were indicted for feloniously stealing a greyhound; which is an animal in which no valuable property can be had, and therefore it is not felony, but only a civil trespass, to steal it in this case the party indicted may demur to the indictment; denying it to be felony, though he confesses the act of taking it. Some have held (e), that if, on demurrer, the point of law be adjudged against the prisoner, he shall have judgment and execution, as if convicted by verdict. But this is denied by others (ƒ), who hold, that in such case he shall be directed and received to plead the general issue, not guilty, after a demurrer determined against him (4). Which appears the more reasonable, because it is clear, that if the prisoner freely discovers the

(a Mirr. c. 1. 13. 2 Hawk. P. C. 335.

(b) 2 Hawk, P. C. 52.

(c) 2 Hal. P. C 236.

(2) Benefit of clergy is abolished in all eases of felony by 7 and 8 Geo. IV. c. 28. $6.

(3) An affidavit of the truth of the plea must be made.

In some cases the defendant may take advantage of the want of jurisdiction, under the plea of not guilty; as where a statute directs the offence shall be tried only within a certain boundary, or by certain magistrates East

(d) Ibid. 256.

(e) 2 Hal. P. C. 257.
(f) 2 Hawk. P. C. 334.

352; or where the objection proves, that ne court in England can try the indictment, East, 583; and an objection to the jurisdiction, apparent on the face of the proceedings, may be taken advantage of on demar.er. T R. 316.

(4) This rule holds good in indiments for felonies, but not for misdemea.. 8 East 112.

act in court, and refers it to the opinion of the court, whether it be felony or no, and upon the fact thus shewn it appears to be felony; the cour, will not record the confession, but admit him afterwards to plead not guilty (g). And this seems to be a case of the same nature, being for the most part a mistake in point of law, and in the conduct of his pleading, and though a man by mispleading may in some cases lose his property yet the law will not suffer him by such niceties to lose his life. How ever, upon this doubt, demurrers to indictments are seldom used. since the same advantages may be taken upon a plea of not guilty; or afterwards in arrest of judgment, when the verdict has established the fact.

III. A plea in abatement (5) is principally for a misnomer, a wrong name, or false addition to the prisoner. As, if James Allen, gentleman, is indicted by the name of John Allen, esquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an esquire. And, if either fact is found by a jury, then the *indict- [*335] ment shall be abated, as writs or declarations may be in civil actions; of which we spoke at large in the preceding book (h) (6). But, in the end, there is little advantage accruing to the prisoner by means of these dilatory pleas; because, if the exception be allowed, a new bill of indictment may be framed, according to what the prisoner in his plea avers to be his true name and addition. For it is a rule, upon all pleas in abatement, that he, who takes advantage of a flaw, must at the same time shew how it may be amended. Let us therefore next consider a more

substantial kind of plea, viz.

IV. Special pleas in bar; which go to the merits of the indictment, and give a reason why the prisoner ought not to answer it at all, nor put himself upon his trial for the crime alleged. These are of four kinds : a former acquittal, a former conviction, a former attainder, or a pardon. There are many other pleas, which may be pleaded in bar of an appeal (i); but these are applicable to both appeals and indictments.

1. First, the plea of autrefoits acquit (7), or a former acquittal, is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. And hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence (j), he may plead such acquittal in bar of any subsequent accusation for the same crime (8). There

(g) 2 Hal. P. C. 225.

(h) See Book III. page 302.

(i) 2 Hawk. P. C. ch. 23.
(j) 3 Mod. 194.

(5) An affidavit of the truth of the plea must 3 B. and C. 502. And if it is irregularly pleadbe filed, 4 & 5 Ann. c. 16. s. 11.

See also 2 R. S. 731, § 71.
(6) These defects are cured in England by
Geo. IV. c. 64, ◊ 19; and in New-York, by
R. S. 728, § 52.

(7) As to this plea in general, see 1 Chit. C. L. 2 ed. 452 to 461. 2 Hale, 240 to 250. Hawk. b. 2. c. 35. Com. Dig. Indictment, L. Burn J. Indictment, XI. 4 to 45. and see the notes on the precedents of that plea, in 4 Chit. Cr. L. 2 ed.

8 But such a plea must be strictly regular both in form and substance; for, in cases of misdemeanor, if it is held bad on demurrer, final judgment may be entered up against the defendant. Rex v. Taylor, 5 D. and R. 422;

ed, and the acquittal which it sets for.h appears to have been obtained by collusion, the court will strike the plea off the file. Rex v. Taylor, 5 D. and R. 521; 3 B. and C. 612. A plea of autrefois acquit cannot be pleaded unless the facts charged in the second indict ment, would, if true, have sustained the first. Rex v. Vandercomb, 2 East, P. C. 519. If, in a plea of autrefoits acquit, the prisoner were to insist on two distinct records of acquitta., his plea would be bad for duplicity. But sem ble, that if he insisted upon the wrong, the court would, in a capital case, take care that he did not suffer by it. Rex v. Sheen, 2 C and P. 635. And if the prisoner could have been legally convicted on the first indictment

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