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received the terrible sentence of penance, or peine forte et dure.

The English judgment of penance for standing mute was as follows: that the prisoner be remanded to the prison from whence he came; and put into a low, dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids; that there be placed upon his body as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison door; and in this situation this should be alternately his daily diet, till he died, or as anciently the judgment ran, till he answered.

The uncertainty of its original, the doubts that were conceived of its legality, and the repugnance of its theory (for it rarely was carried into practice) to the humanity of the laws of England, all concurred to require a legislative abolition of this cruel process, and a restitution of the ancient common law; whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge.

II. The other incident to arraignments, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain con- . fession, the court hath nothing to do but to award judgment: but it is usually 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.

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 felony, and arraigned for the same, doth confess the fact before plea pleaded; and appeals or accuses others, his accomplices, of the same crime, in order to obtain his pardon. In this case 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, 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 battle, 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 justitiæ. 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 convicting of some other person, and therefore his conviction remains absolute.

But it is purely in the discretion of the court to permit the approver thus to appeal, or not; and, in fact, this course of admitting approvements hath been long disused. All the good, whatever it be,

that can be expected from this method of approvement, is fully provided for in the cases of coining, robbery, burglary, house-breaking, horse-stealing, and larceny to the value of five shillings from shops, warehouses, 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 many cases receive a reward of 40l. and in general be intitled to a pardon of all capital offences, excepting only murder and treason; and of them also in the case of coining. And if any such person, having feloniously stolen any lead, iron, or other metals, 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.

CHAPTER XXVI.

OF PLEA AND ISSUE.

We are now to consider the plea of the prisoner. 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.

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.

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 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. 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. 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 misnosmer, a wrong name, or a false addition to the prisoner. And, if either fact is found by a jury, then the indictment shall be abated, as writs or declarations may be in civil actions. But, in the end, there is little advantage accruing to the pri soner 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. 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.

1. First, the plea of auterfoits 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.

2. Secondly, the plea of auterfoits convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be, is a good plea in bar to an indictment; as the former, that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has 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. It is to be observed, that the pleas of auterfoits acquit

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