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

h See Vol. III. pag.302.

2 Hawk. P.C. ch. 23.

VOL. IV.

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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 ". 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; wherein, cessante ratione, cessat et ipsa lex. As, 1. Where the former attainder is reversed for error, for then it is the same as if it had never been. And the same reason holds, [ 337 ] where the attainder is reversed by parliament, or the judgment vacated by the king's pardon, with regard to felonies committed afterwards. 2. Where the attainder was upon indictment, such attainder is no bar to an appeal: for the prior sentence is pardonable by the king; and if that might be pleaded in bar of the appeal, the king might in the end defeat the suit of the subject, by suffering the prior sentence to stop the prosecution of a second, and then, when the time of appealing is elapsed, granting the delinquent a pardon. 3. An attainder in felony is no bar to an indictment of treason: because not only the judgment and manner of death are different, but the forfeiture is more extensive, and the attainted of one felony, is afterwards indicted as principal in another, to which there are also accessories, prosecuted at the same time; in this case it is held, that the plea of autrefoits attaint is no bar, but he shall be compelled to take his trial, for the sake of public justice: because the accessories to such second felony cannot be convicted till after the conviction of the principal". And from these instances we may collect that a plea of autrefoits attaint is never good, but when a second trial would be quite superfluous".

land goes to different persons. 4. Where a person

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

and efficacy, as well after as before conviction, outlawry, or [338] attainder; I shall therefore reserve the more minute consideration of them, till I have gone through every other title except only that of execution.

BEFORE I Conclude this head of special pleas in bar, it will be necessary once more to observe, that though in civil actions when a man has his election what plea in bar to make, he is concluded by that plea, and cannot resort to another if that be determined against him; (as if, on an action of debt, the defendant pleads a general release, and no such release can be proved, he cannot afterwards plead the general issue, nil debet, as he might at first: for he has made his election what plea to abide by, and it was his own folly to choose a rotten defence;) though, I say, this strictness is observed in civil actions, quia interest reipublicæ ut sit finis litium: yet in criminal prosecutions in favorem vitæ, as well upon appeal as indictment, when a prisoner's plea in bar is found against him upon issue tried by a jury, or adjudged against him in point of law by the court; still he shall not be concluded or convicted thereon, but shall have judgment of respondeat ouster, and may plead over to the felony the general issue, not guilty. For the law allows many pleas, by which a prisoner may escape death; but only one plea, in consequence whereof it can be inflicted; viz. on the general issue, after an impartial examination and decision of the fact, by the unanimous verdict of a jury. (3) It remains therefore that I consider,

P 2 Hal. P. C. 239.

(3) In criminal cases if a plea in abatement is found against the defendant, the general rule is that it is final, and he cannot plead over; the law laid down in the text is an exception to the rule in favorem vitæ, and prevails only in treasons and felonies. R. v. Gibson, 8 East, 107.

With respect to pleas in bar, it should seem on legal principles, that the same rule with the same exception should prevail; and where the plea contains a confession in fact as in the cases of autrefois convict or pardon, there seems to be no hardship in awarding judgment, if the matter of defence be untrue, or the plea be bad in law. But where that is not the case, as in autrefois acquit, the same reasoning does not hold. An instance of this kind is at present under the consideration of the court of K. B., where upon demurrer to a plea of autrefois acquit the judgment was for the crown. The rule therefore may be considered as still uncertain..

V. THE general issue, or plea of not guilty, upon which plea alone the prisoner can receive his final judgment of death. In case of an indictment of felony or treason, there can be no special justification put in by way of plea. As, on an indictment for murder, a man cannot plead that it was in his own defence against a robber on the highway, or a burglar; but he must plead the general issue, not guilty, and give this special matter in evidence. For (besides that these pleas do in effect amount to the general issue; since, if true, the prisoner is most clearly not guilty) as the facts in treason are laid to be done proditorie et contra ligeantiae suae debitum, [339 ] and, in felony, that the killing was done felonice; these charges, of a traiterous or felonious intent, are the points and very gist of the indictment, and must be answered directly, by the general negative, not guilty; and the jury upon the evidence will take notice of any defensive matter, and give their verdict accordingly as effectually as if it were, or could be, specially pleaded. So that this is, upon all accounts, the most advantageous plea for the prisoner'.

WHEN the prisoner hath thus pleaded not guilty, non culpabilis, or nient culpable; which was formerly used to be abbreviated upon the minutes, thus, "non (or nient) cul.," the clerk of the assise, or clerk of the arraigns, on behalf of the crown, replies, that the prisoner is guilty, and that he is ready to prove him so. This is done by two monosyllables in the same spirit of abbreviation, " cul. prit." which signifies first that the prisoner is guilty, (cul. culpable, or culpabilis,) and then that the king is ready to prove him so; prit, praesto sum, or paratus verificare. This is therefore a replication on behalf of the king viva voce at the bar; which was formerly the course in all pleadings, as well in civil as in criminal causes. And that was done in the concisest manner: for when the pleader intended to demur, he expressed his demurrer in a single word, "judgment;" signifying that he demanded judgment, whether the writ, declaration, plea, &c. either in form or matter, were sufficiently good in law and if he meant to rest on the truth of the facts pleaded, he expressed that also in a single syllable, "prît;" signifying that he was ready to