CHAPTER THE TWENTY SIXTH.

OF PLEA, AND ISSUE.

W

E are now to confider the plea of the prisoner, or defenfive matter alleged by him on his arraignment, if he does not confefs, 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 iffue.

FORMERLY there was another plea, now abrogated, that of fanctuary; which is however necessary 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 accused of any crime (except treason, 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 confessed himself 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 should be affigned him, and would never return without leave from the king; he by this means faved his life, if he observed the conditions of the oath, by going with a crofs in his hand and with

all

all convenient speed, to the port affigned, and embarking. For if, during this forty days privilege of fanctuary, or in his road to the sea fide, he was apprehended and arraigned in any court for this felony, he might plead the privilege of fanctuary, and had a right to be remanded, if taken out against his will. But by this abjuration his blood was attainted, and he forfeited all his goods and chattels '. The immunity of thefe privileged places was very much abridged by the statutes 27 Hen. VIII. c. 19. and 32 Hen. VIII. c. 12. And now, by the ftatute 21 Jac. I. c. 28. all privilege of fanctuary, and abjuration consequent thereupon, is utterly taken away and abolished.

FORMERLY alfo the benefit of clergy ufed to be pleaded before trial or conviction, and was called a declinatory plea; which was the name alfo given to that of fanctuary. But, as the prisoner upon a trial has a chance to be acquitted, and totally discharged; and, if convicted of a clergyable 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 requifite, is prayed by the convict before judgment is paffed upon him.

I PROCEED therefore to the five fpecies of pleas, beforementioned.

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 feffions: in these or fimilar cafes, he may except to the jurisdiction of the court, without answering at all to the crime alleged.

II. A DEMURRER to the indictment. This is incident to criminal cases, as well as civil, when the fact as alleged is allowed

:

to be true, but the prifoner joins iffue upon some point of law in the indictment, by which he infists that the fact, as stated, is no felony, treason, or whatever the crime is alleged to be. Thus, for instance, if a man be 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 fteal it in this case the party indicted may demur to the indictment; denying it to be felony, though he confeffes the act of taking it. Some have held, that if, on demurrer, the point of law be adjudged against the prifoner, he shall have judgment and execution, as if convicted by verdict. But this is denied by others, who hold, that in such case he shall be directed and received to plead the general iffue, not guilty, after a demurrer determined against him. Which appears the more reasonable, because it is clear, that if the prisoner freely discovers the fact in court, and refers it to the opinion of the court, whether it be felony, or no; and upon the fact thus fhewn in appears to be felony; the court will not record the confeffion, but admit him afterwards to plead not guilty. And this feems to be a cafe of the fame nature, being for the most part a mistake in point of law, and in the conduct of his pleading; and, though a man by mifpleading may in fome cafes lose his property, yet the law will not fuffer him by fuch niceties to lose his life. However, upon this doubt, demurrers to indictments are feldom ufed: fince the fame advantages may be taken upon a plea of not guilty; or afterwards, in arrest of judgment, when the verdict has eftablished the fact.

III. A PLEA in abatement is principally for a misnosmer, a wrong name, or a false addition to the prifoner. As, if James Allen, gentleman, is indicted by the name of John Allen, efquire, he may plead that he has the name of James, and not of John; and that he is a gentleman, and not an efquire. And, if either fact is found by a jury, then the indictment shall be abated, as

• 2 Hal. P. C. 257.

2 Hal. P. C. 225.

writs or declarations may be in civil actions; of which we spoke at large, in the preceding volume". But, in the end, there is little advantage accruing to the prifoner 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 confider 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 anfwer 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: but these are applicable to both appeals and indictments.

1. FIRST, the plea of auterfoits acquit, or a former acquittal, is grounded on this univerfal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the fame offence. And hence it is allowed as a confequence, that when a man is once fairly found not guilty upon any indictment, or other profecution, he may plead fuch acquittal in bar of any subsequent accufation for the fame crime. Therefore an acquittal on an appeal is a good bar to an indictment of the fame offence. And fo also was an acquittal on an indictment a good bar to an appeal, by the common law *: and therefore, in favour of appeals, a general practice was introduced, not to try any perfon on an indictment of homicide, till after the year and day, within which appeals may be brought, were paft; by which time it often happened that the witneffes died, or the whole was forgotten. To remedy which inconvenience, the statutc 3 Hen. VII. c. 1. enacts,

h See Vol. III. pag. 302.

2 Hawk. P. C. ch. 23.

VOL. IV.

* Ibid. 373.

Sf

that

that indictments fhall be proceeded on, immediately, at the king's fuit, for the death of a man, without waiting for bringing an appeal; and that the plea, of auterfoits acquit on an indictment, shall be no bar to the prosecuting of any appeal.

2. SECONDLY, the plea of auterfoits convict, or a former conviction for the fame identical crime, though no judgment was ever given, or perhaps will be, (being suspended by the benefit of clergy or other causes) is a good plea in bar to an indictment. And this depends upon the same principle as the former, that no man ought to be twice brought in danger of his life for one and the fame crime'. Hereupon it has been held, that a conviction of manslaughter, on an appeal, is a bar even in another appeal, and much more in an indictment, of murder; for the fact profecuted is the fame in both, though the offences differ in colouring and in degree. It is to be observed, that the pleas of auterfoits acquit, and auterfoits convict, or a former acquittal, and former conviction, must be upon a profecution for the fame identical act and crime. But the cafe is otherwise, in

3. THIRDLY, the plea of auterfoits attaint, or a former attainder; which is a good plea in bar, whether it be for the fame or any other felony. For wherever a man is attainted of felony, by judgment of death either upon a verdict or confeffion, by outlawry, or heretofore by abjuration; and whether upon an appeal or an indictment; he may plead fuch attainder in bar to any fubfequent indictment or appeal, for the fame or for any other felony". And this because, generally, fuch proceeding on a second profecution cannot be to any purpose; for the prisoner is dead in law by the first attainder, his blood is already corrupted, and he hath forfeited all that he had: fo that it is abfurd and fuperfluous to endeavour to attaint him a fecond time. But to this general rule however, as to all others, there are fome exceptions; wherein, ceffante ratione, ceffat et ipfa lex. As, 1. Where the former attainder is reversed for error, for then it 12 Hawk. P. C. 377Ibid. 375.