II. [The other incident to arraignment, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court hath nothing to do but to award judgment: but it is usually very backward in receiving and recording such confession,] at least in capital cases, [out of tenderness to the life of the subject; and will generally advise the prisoner to retract it and plead to the indictment (s).

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 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 by the country; and, if 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 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 conviction 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 arose to good men by these kinds of approvements, upon false and malicious accusations of despe

(s) 2 Hale, P. C. 225.

[rate 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 were held therein; though, since their discontinuance, the doctrine of approvements is become a matter of more curiosity than use (t).]

It has also been usual for the justices of the peace, by whom any persons charged with felony are committed to gaol,-in cases where it has appeared probable that the evidence would otherwise be insufficient to obtain a conviction,-to hold out a hope to some one of the accomplices, that if he will fairly disclose the whole truth as a witness on the trial, and bring the other offenders to justice, he shall himself escape punishment. Such an accomplice is usually said to be admitted to become queen's evidence; but his admission in that capacity, requires the subsequent sanction of the judges of gaol delivery (u). Nor will any person in general be admitted as queen's evidence, if it appear that he is charged with any other felony than that in question (x). The testimony of an accomplice is in all cases, indeed, regarded with just suspicion (y); and unless this statement is corroborated in some material part by unimpeachable evidence, the jury are usually advised by the judge to acquit the prisoner (z); and if the accomplice, after having confessed the crime, and being admitted as queen's evidence, fails in the con

(t) See 2 Hale, P. C. c. 29; Hawk. P. C. b. 2, c. 24.

(u) See R. v. Rudd, Cowp. 331.

(x) 2 C. & P. 411. See R. v. Lee, R. & R. C. C. R. 361; R. v. Brunton, ibid. 454.

(y) On this subject see the remarks of Holt, C. J., in Charnock's case, 4 St. Tr. 594.

(2) 1 Phil. Ev. 9th edit. 31; Taylor on Evidence, p. 779, 2nd edit. And as to the nature of the confirmation required, see R. v.

Addis, 6 C. & P. 388; R. v. Webb, ibid. 595; R. v. Moores, 7 C. & P. 270; R. v. Wilkes, ibid. 272; Despard's case, 28 How. St. Tr. 488. It is held, however, that the jury may legally convict if they think fit, on the unsupported testimony of an accomplice. 1 Phil. Ev. 30; R. v. Hastings, 7 C. & P. 152; Taylor on Evidence, p. 779, 2nd edit.; R. v. Stubbs, 1 Dearsley's C. C. R.

555.

dition on which he was so received, by refusing to give fair and full information, he is then himself liable to be tried for the offence, and may be convicted on his own confession (a).

(a) 1 Phil. Ev. 29. Upon a trial at York before Mr. Justice Buller, the accomplice denied in his evidence all that he had before confessed; upon which the prisoner was acquitted. But the judge ordered

an indictment to be preferred against the accomplice for the same crime; and on his previous confession, and other circumstances, he was convicted and executed. (Christian's Blackstone.)

VOL. IV.

I I

CHAPTER XXI.

OF PLEA AND ISSUE.

[WE are now to consider the plea of the prisoner,] or defendant (a); that is, the [defensive matter alleged by him on his arraignment, if he does not confess or stand mute. This is either-I. A plea to the jurisdiction. II. A demurrer (b). III. A plea in abatement. IV. A special plea in bar: or, V. The general issue (c).]

(a) Vide sup. p. 424. By 19 & 20 Vict. c. 16, s. 6, it is provided, that on application to the Queen's Bench for an order under that Act, that a person charged with any offence committed, or supposed to have been committed, out of the jurisdiction of the Central Criminal Court, shall nevertheless be there tried, it shall not be necessary for such person to plead any plea to such indictment or inquisition in the Queen's Bench, when the order applied for is made.

(b) See Bl. Com. vol. iv. p. 332. It has not been thought material to alter this arrangement of Blackstone's; but, in strictness, a demurrer is not a plea. It is rather an exception taken to the indictment or information in point of law, as a reason why the defendant should not be compelled to plead to its allegations. As to demurrer in civil cases (to which this is equivalent), vide sup. vol. 111. p. 596.

(c) Besides these pleas, there

were formerly the declinatory pleas
of sanctuary, and of benefit of clergy.
(See 2 Hale, P. C. 236.) As to the
former, we may remark, that the law
of sanctuary was introduced and con-
tinued during the superstitious vene-
ration paid to consecrated ground,
in the time of popery; and existed
in England from a period soon after
the conversion of the Saxons to
Christianity. (See Reeves's Hist.
Eng. Law, vol. i. p. 19; vol. iii. p.
137; vol. iv. pp. 182, 314, 320.) The
statement of this law by Blackstone
(vol. iv. p. 332) is as follows:-" If

a person accused of any crime, 'except treason and sacrilege, had "fled to any church or churchyard, "and within forty days after, went "in sack-cloth and confessed him"self guilty before the coroner; and "declared all the particular circum"stances of the offence, and took the "oath in that case provided, viz. that "he abjured the realm, and would "depart from thence forthwith at "the port which should be assigned

I. [A plea to the jurisdiction, is where an indictment is taken before a court that hath no cognizance of the offence (d): as if a man be indicted for a rape at the sheriff's tourn; or for treason at the quarter sessions (e). In these or similar cases, he may except to the jurisdiction of the court, without answering at all to the crime alleged (ƒ).] But a formal plea to the jurisdiction is of rare occurrence: it being competent to a defendant to bring forward this sort of objection, in some cases by way of demurrer, or by motion in arrest of judgment; in others under the general issue (g).

"him, and would never return with"out 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, "and with all convenient speed, to "the port assigned, and embarking. "For if during this forty days' pri"vilege of sanctuary, or on his road "to the sea side, he was appre"hended and arraigned in any court "for this felony, he might plead the "privilege of sanctuary, and had a

the opposing of any process in pretended privileged places is made penal, by the statutes 8 & 9 Will. 3, c. 27; 9 Geo. 1, c. 28; 11 Geo. 1, c. 22; 1 Geo. 4. c. 116; as to which, vide sup. p. 306.

As to benefit of clergy, vide post, p. 524, n. (c). We shall only remark here, that though it might be the subject of a plea, it was not usually brought forward in that shape, but in arrest of judgment.

(d) By 19 & 20 Vict. c. 16, s. 7, wherever any indictment or inquisition shall have been transmitted or removed to the Central Criminal Court, under the provisions of that Act, any person charged with any offence thereby shall plead to such indictment or inquisition, and shall be tried in the said Central Criminal Court, in the same manner in all respects as if such offence had been actually committed within the jurisdiction of that court, and the indictment or inquisition had been originally there presented or returned. See also 25 & 26 Vict. c. 65, s. 7.

right to be remanded if taken out "against his will."-(Mirr. c. 1, s. 13; Hawk. P. C. b. 2, c. 32.) But by this abjuration his blood was attainted, and he forfeited all his goods and chattels. (Hawk. P. C. b. 2, c. 9, s. 44.) The immunity of these sanctuaries,-which consisted not only of churches and churchyards, but of certain other places in various parts of this kingdom, viz. in Westminster, Wells, Norwich, York, &c. was very much abridged by the statutes 26 Hen. 8, c. 13; 27 Hen. 8, c. 19, and 39 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. And :: II 2

(e) Vide sup. p. 398.

(f) 2 Hale, P. C. 256.

(g) R. v. Fearnley, 1 T. R. 316; R. v. Johnson, 6 East, 583.