taken out against his will. 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. 8. c. 19. and 32 Hen. 8. c. 12. And now by the statute 21 Jac. 1. 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 . 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, [and is entitled to it but once if a layman;] 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 (1). 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 a 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 ". a Mirr. c. 1. § 13. 2 Hawk. P. C. c. 32. b 2 Hawk P.C. c.9. § 44. 2 Hal. P. C. 236. d Ibid. 256. (1) Supposing the prisoner upon his arraignment to plead his clergy by way of declinatory plea, he was not immediately delivered to the ordinary without enquiry, but the justices issued a writ to the sheriff, who returned a jury of twenty-four. These constituted an inquest ex officio and examined both as to the fact of his being a clergyman, and also as to his guilt; if they found both in the affirmative, he was delivered to the ordinary, but forfeited his goods; if they negatived the first fact, the prisoner pleaded over in bar; and the trial went on in the ordinary course; if they negatíved the latter fact, he was discharged at once. In Hale's P.C. and the notes will be found several records of these proceedings, vol. 1. p. 180., where the form is ut sciatur pro quali eidem ordinario liberari debeat. Ibid. p. 343. vol. ii. p. 318.378. II. A DEMURRER to the indictment. This is incident to criminal cases, as well as civil, when the fact as alleged is [334] allowed to be 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 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 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, 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, 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. 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 shewn it appears to be felony; the court will not record the confession, but admit him afterwards to plead not guilty ". 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. However, 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 is principally for a misnomer, a wrong name, or a 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 indictment f 2 Hal. P.C: 257. 72 Hawk. P.C. c.31. § 5, 6. 2 Hal. P. C. 225. shall be abated, as 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 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'; but these are applicable to both appeals and indictments. 1. FIRST, the plea of autrefoits acquit, 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', he may plead such acquittal in bar of any subsequent accusation for the same crime. Therefore an acquittal on an appeal is a good bar to an indictment on the same offence. And so 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 person on an indictment of homicide, till after the year and day, within which appeals may be brought, were past: by which time it often happened that the witnesses died, or the whole was forgotten. To remedy which inconvenience, the statute 3 Hen. VII. c. 1. enacts, that indictments shall be proceeded on immediately, at the king's suit, for the death b See Vol. III. pag.302. 12 Hawk. P. C. ch. 28. j 3 Mod. 194. k 2 Hawk. P. C. c.26. § 10. VOL. IV. C C of a man, without waiting for bringing an appeal; and that the plea of autrefoits acquit on an indictment, shall be no bar to the prosecuting of any appeal. 2. SECONDLY, the plea of autrefoits convict, or a former conviction for the same 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 same crime'. Hereupon it hath been held, that a conviction of manslaughter, on an appeal or an indictment, is a bar even in another appeal, and much more in an indictment, of murder; for the fact prosecuted is the same in both, though the offences differ in colouring and in degree. It is to be observed, that the pleas of autrefoits acquit and autrefoits convict, or a former acquittal, and former conviction, must be upon a prosecution for the same identical act and crime (2). But the case is otherwise, in 3. THIRDLY, the plea of autrefoits attaint, or a former attainder; which is a good plea in bar, whether it be for the same or any other felony. For wherever a man is attainted of felony by judgment of death either upon a verdict or confession, by outlawry, or heretofore by abjuration; and whether upon an appeal or an indictment; he may plead such attainder in bar to any subsequent indictment or appeal, for the same or for any other felony m. And this because, generally, such proceeding on a second prosecution 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 so that it is absurd and superfluous to endeavour to attaint him a second time. But to this general (2) The test of identity is, whether the same evidence will prove both indictments; if it will not, the party has never been in jeopardy before for the same fact. This applies to the numerous cases of acquittals for misdescriptions, and other formal inaccuracies, in which it is very common to prefer a second bill of indictment, which will not be barred by the former trial. rule, however, as to all others, there are some exceptions; 4. LASTLY, a pardon may be pleaded in bar; as at once destroying the end and purpose of the indictment, by remitting that punishment which the prosecution is calculated to inflict. There is one advantage that attends pleading a pardon in bar, or in arrest of judgment, before sentence is past; which gives it by much the preference to pleading it after sentence or attainder. This is, that by stopping the judgment it stops the attainder, and prevents the corruption of the blood; which, when once corrupted by attainder, cannot afterwards be restored, otherwise than by act of parliament. But as the title of pardons is applicable to other stages of prosecution; and they have their respective force H |