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upon his arraignment, by ftanding mute; which now, in all cafes, amounts to a conftructive confeflion.

II. THE other incident to arraignments exclufive of the plea, is the prifoner's actual confeffion of the indictment. Upon a fimple and plain confeffion, the court hath nothing to do but to award judgment: but it is ufually very backward in receiving and recording fuch confeffion, out of tenderness to the life of the fubject; and will generally advise the prifoner to retract it, and plead to the indictment.

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BUT there is another fpecies of confeffion, which we read much of in our antient books, of a far more complicated kind, which is called approvement. And that is when a perfon, indicted of treafon or felony, and arraigned for the fame, [330 ] doth confefs the fact before plea pleaded; and appeals or accufes others, his accomplices of the fame crime, in order to obtain his pardon. In this cafe he is called an approver or prover, probator, and the party appealed or accused is called the appellee. Such approvement can only be in capital offences; and it is, as it were, equivalent to an indictment, fince 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 him put himself upon his trial, either by battel, or by the country; and, if vanquished or found guilty, muft fuffer the judgment of the law, and the approver fhall have his pardon ex debito juftitiae. On the other hand, if the appellee be conqueror, or acquitted by the jury, the approver fhall receive judgment to be hanged, upon his own confeffion of the indictment; for the condition of his pardon has failed, viz, the convicting of fome other perfon, and therefore his conviction remains abfolute.

purely in the discretion of the court to permit
the approver thus to appeal, or not; and, in fact, this courfe

f 2 Hal. P. C. 225.




of admitting approvements hath been long difufed: for the truth was, as fir Matthew Hale obferves, that more milchief hath arifen to good men by thefe kind of approvements, upon false and malicious accufations of defperate villains, than benefit to the public by the difcovery and conviction of real offenders. And therefore, in the times when fuch appeals were more frequently admitted, great strictness and nicety were held therein: though, fince their discontinuance, the doctrine of approvements is become a matter of more curiofity than ufe. I fhall only obferve, that all the good, whatever it be, that can be expected from this method of approvement is fully provided for in the cafe of coining, robbery, burglary, house-breaking, horfe-ftealing, and larciny to the value of five fhillings from fhops, warehouses, ftables, and coach-houfes, by ftatutes 4 & 5 W. & M. c. 8. [ 331 ] 6 & 7 W. III. c. 17. 10 & 11 W. III. c. 23. and 5 Ann. c. 31. which enact, that, if any fuch offender, being out of prifon, fhall difcover two or more perfons, who have committed the like offences, so as they may be convicted thereof; he fhall in case of burglary or housebreaking receive a reward of 40% and in general be entitled to a pardon of all capital offences, excepting only murder and treafon; and of them alfo in the cafe of coining". And if any such person, having feloniously stolen any lead, iron, or other metals, fhall dif cover and convict two offenders of having illegally bought or received the fame, he fhall by virtue of ftatute 29 Geo. II. c. 30. be pardoned for all fuch felonies committed before fuch discovery (4). It hath alfo been usual for the justices of the peace, by whom any perfons charged with felony are

8 2 Hal. P. C. ch. 29. 2 Hawk. fences against the coinage act of 15 P. C. ch. 24. Geo. II. c. 28. extends only to all fuch

h The pardon, for discovering of offences.

(4) The perfons defcribed in the above ftatutes, and also those perfans to whom the king, by special proclamation in the gazette or otherwise, has promised his pardon, lord Mansfield says have a right to a pardon. Corp. 334.



committed to gaol, to admit fome one of their accomplices to become a witness (or, as it is generally termed, king's evidence) againft his fellows; upon an implied confidence, which the judges of gaol delivery have usually countenanced and adopted, that if fuch accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magiftrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be profecuted for that or any other previous offence of the fame degree (5).

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The King v. Rudd; Mich. 16 Geo. III. qn a cafe reserved from the old bailey, Oct. 1775.

(5) In the cafe of Mrs. Rudd, in which this fubject is clearly and ably explained by lord Mansfield, and again by Mr. J. Afton, 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 fhall be a witness at all events against others. But where the evidence appears infufficient to convict two or more without the teftimony of one of them, the magiftrate may encourage a hope that he, who will behave fairly and difclose the whole truth and bring the others to juftice, fhall himself efcape punishment. But this difcretionary power exercised by the justices. of peace is founded in practice only, and cannot controul the autho rity 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 accomplice to be a witness, and unless he should see fome particular reafon for a contrary conduct, he will prefer the one to whom this encouragement has been given by the juftice of peace. This admission to be a witness amounts to a promise of a recommendation to mercy, upon condition that the accompilce makes a full and fair disclosure of all the circumstances. of the crime for which the other prisoners 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 fome years ago at York, before Mr. J. Buller, the accomplice, who was admitted a witnefs, denied in his evidence all that he had before confeffed, upon which the prisoner was acquitted; but the judge ordered an indictment to be preferred against this accomplice

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accomplice for the fame crime, and upon his previous confeffion d and executed. And if and other circumstances he was convicted the jury were fatisfied with his guilt, there can be no question with regard both to the law and juftice of the cafe.

The learned commentator fays, that the accomplice thus admitted other a witness, shall not afterwards be profecuted for that or any previous offence of the fame degree. Mrs. Rudd's cafe does not warrant the extent of that pofition, for the decifion of that case, and what is advanced by Mr. J. Afton, (Corp. 341.) and as the editor conceives the reafon and principles of this doctrine, will not extend the claim of the witnefs to mercy beyond those offences in which he has been connected with the prifoners, and concerning which he has previously undergone an examination.




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E are now to confider the plea of the prisoner, or defenfive 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 ifsue.

FORMERLY there was another plea, now abrogated, that of fanctuary; which is however neceffary to be lightly touched upon, as it may give fome light to many parts of our antient law it being introduced and continued during the fuperftitious veneration that was paid to confecrated ground in the times of popery. First then, it is to be observed, that if a perfon accufed of any crime (except treafon, wherein the crown, and facrilege, wherein the church, was too nearly concerned) had fled to any church or church-yard, and within forty days after went in fackcloth and confeffed himfelf guilty before the coroner, and declared all the particular circumstances of the offence; and thereupon took the oath in that cafe provided, viz. that he abjured the realm, and would depart from thence forthwith, at the port that fhould be affigned him, and would never return without leave from the king; he by this means faved his life, if he obferved the conditions of the oath, by going with a cross in his hand and with all convenient speed, to the port affigned, [333] and embarking. For if, during this forty days privilege of fanctuary, or in his road to the fea-fide, he was apprehended

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