ward 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 antient books, of a far more complicated kind, which is called approvement. And that is when a per[330] son, indicted of treason or felony, and arraigned for the same, doth confess the fact before plea pleaded (7); 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 battel, 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 justitiae. 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 for the truth was, as sir Matthew Hale observes, that more mischief hath arisen to good men by these kind of approvements, upon false and malicious accusations of desperate villains, than benefit to the public by the discovery and conviction of real offenders. And therefore, in the times when such appeals were more frequently admitted, great strictness and nicety f 2 Hal. P. C. 225. (7) It seems that the approver not only confessed the crime of which he was indicted, but was sworn to reveal all the treasons and felonies of which he could give any information. Rudd's Case. Cowper. 335. were held therein: though, since their discontinuance, the doctrine of approvements is become a matter of more curiosity than use. I shall only observe, that 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 larciny to the value of five shillings from shops, warehouses, stables, and coachhouses, by statutes 4 & 5 W. & M. c. 8. 6&7 W.III. c. 17. [ 331 ] 10 & 11 W. III. c. 23. and 5&6 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 case of burglary or house-breaking receive a reward of 40l. and in general be entitled 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 metal, 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. It hath also been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol, to admit some one of their accomplices to become a witness (or, as it is generally termed, king's evidence) against his fellows; upon an implied confidence, which the judges of gaol-delivery have usually countenanced and adopted, that if such accomplice makes a full and complete discovery of that and of all other felonies to which he is examined by the magistrate, and afterwards gives his evidence without prevarication or fraud, he shall not himself be prosecuted for that or any other previous offence of the same degree. (8) 2 Hal. P. C. ch. 29. 2 Hawk. P.C. ch. 24. "The pardon for discovering offences against the coinage act of 15 Geo. II. c. 28. extends only to all such offences. The king v. Rudd; Mich. 16 Geo. (8) See ante, p. 295. (n.6). The case of the King v. Rudd is reported in Cowper, p. 331; and is exceedingly worth reading, both for its luminous abstract of the Law of Approvement by Lord Mansfield, and also the clear statement of the practice as to King's Evidences. CHAPTER THE TWENTY-SIXTH. OF PLEA, AND ISSUE. WE FORMERLY there was another plea, now abrogated, that of sanctuary; which is however necessary to be lightly touched upon, as it may give some light to many parts of our antient law; it being introduced and continued during the superstitious veneration that was paid to consecrated ground in the times of popery. First then, it is to be observed, that if a person accused of any crime, (except treason, wherein the crown, and sacrilege, wherein the church, was too nearly concerned) had fled to any church or church-yard, and within forty days after went in sackcloth and confessed himself guilty before the coroner, and declared all the particular circumstances of the offence; and thereupon took the oath in that case provided, viz. that he abjured the realm, and would depart from thence forthwith at the port that should be assigned him, and would never return without leave from the king; he by this means saved his life, if he observed the conditions of the oath, by going with a cross in his hand, [333] and with all convenient speed to the port assigned, and em barking. For if, during this forty days' privilege of sanctuary, or in his road to the sea-side, he was apprehended and arraigned in any court for this felony, he might plead the privilege of sanctuary, 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 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. c2 Hal. P. C. 236. (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 negatived 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.ü. 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 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 |