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foundation for a conviction and judgment against life. This express, judicial, and direct confession is considered as the highest possible conviction ;and after it is made and received, the court does and can do nothing but pronounce the judgment of the law. *

It now, I apprehend, appears from principle, as it appeared a little while ago from authority, that, on an indictment for a capital crime, this express, judicial, and direct confession of it ought not to be made. He who makes it undertakes to be the arbiter of his own life: for, as we now see, the judgment of death follows as a consequence, necessary and unavoidable. A decision of this very solemn kind ought to be a decision of the society, upon the principles formerly explained, and not a decision of the party himself. For such a decision he may be unqualified, sometimes on account of his understanding, sometimes on account of his disposition. He may not be apprized of every legal ingredient, which ought to form a part in the composition of the crime which he confesses : human conduct is sometimes influenced by an irresolute impatience, as well as, at other times, by an overweening fondness of life.

It is certainly true, that persons have confessed themselves guilty of crimes, of which, indeed, they were innocent. A remarkable case of this nature is mentioned in our law books. A gentleman of the name of Harrison appeared alive, many years after three persons had been hanged for his murder; one of whom confessed it.

w 2. Haw. 333.

* 4. BL Com. 324. •

Tr. per Pais. 603.

Many persons accused have confessed themselves guilty of witchcraft, and of other crimes equally problematical.

By the civil law, the confession of the person accused is not sufficient to convict him of a capital crime, without other proofs: for it may so happen, that such a confession is dictated only by the inquietude or despair of a troubled mind. 2 Another reason may likewise be assigned: he may, by a mistaken as well as by a disordered under. standing, acknowledge that to be a crime, which in law is not that crime.

Thus much for confession, or the plea of guilty to an indictment.

III. An indictment may be answered by a plea to the jurisdiction of the court, in which it is found. This plea is proper when an indictment for any particular crime is found in a court, which has no authority to hear, try, or determine that particular crime: as if a court of quarter sessions should arraign one on an indictment for treason, of which that court has no jurisdiction. a

IV. An indictment may be answered by a plea in abatement-in other words, a plea, the design of which is to destroy the indictment, without answering the crime which it charges. This, in some cases, may be very proper; as when one is indicted and called to answer by a wrong name.

If he suffer this mistake to pass unnoticed, it is doubtful whether he may not afterwards be indicted for the same crime by his right name. If the plea be supported, the indictment will be abated; but he

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may be immediately indicted anew, by the name which he has averred to be his true one. For in all pleas in abatement it is a rule, that he who would take advantage of a mistake, must show, at the same time, how that mistake may be rectified.

V. An indictment may be answered by a plea in bar. A plea in bar does not directly deny the commission of the crime charged; but it adduces and relies on some reason calculated to show, that the prisoner cannot be tried or punished for it, either on that or on any other indictment.

A former acquittal of the same charge is a plea of this kind: for it is a maxim firmly established by the common law, that no one can be brought in danger oftener than once on account of the same crime.

A former conviction of the same crime is also a plea of this kind; and depends on the same principle.

An attainder of any capital crime is a good plea in bar of an indictment for the same, or for any

other crime. The reason is, that by the attainder the prisoner is dead in law; his blood is corrupted ; and his estate is forfeited; so that an attempt to attaint him a second time would be altogether nugatory and superfluous.

It is natural and obvious to remark here, how the severity of punishment becomes the parent of impunity for crimes. When one is punished, or condemned to be , punished, as far as he can be punished, for one crime, he may commit another, without any fear or risk of additional punishment.

In proportion as the criminal code becomes less' severe, the operation of the plea of a former attainder becomes less powerful; for it is never proper, unless when a second trial could answer no purpose.

A pardon is another plea in bar of an indictment; for, by remitting the punishment of the crime, it destroys the end which is proposed by the prosecution. In England, an advantage is gained by pleading a pardon, which cannot be obtained by it after an attainder. A pardon prevents the corruption, but cannot restore the purity of blood.

If any one of these pleas in bar is successful, the party pleading it is discharged from farther prosecution ; but if they should all fail, a resource is still left.

VI. An indictment may be answered by pleading not guilty of the crime which it charges. An issue, you recollect, is a point denied on one side and affirmed on the other. The plea of not guilty is called the general issue; because, on that plea, the whole charge comes regularly and fully under examination. It is averred by the indictment: it is denied by the plea. On this plea alone-such, as we have seen from the foregoing deduction, is the benignity of the common law---on this plea alone, the prisoner can receive a final judgment against him. A judgment of acquittal may be produced by many different causes : but a sentence of condemnation can be founded only on a conviction of guilt.

When the prisoner pleads that he is not guilty ; he, for the trial of his plea, puts himself upon

his country. The extensive and the emphatick import of this expression, neglected because it is common, was fully illustrated on another occasion.


In ancient times, a variety of methods, by which crimes might be tried, was known to the common law. A trial might be had by ordeal; and this species of trial was either by fire or by water. The corsned, or morsel of execration, was another kind of trial. The trial by battle was a third kind. A fourth kind still remains and is our boast-the trial by jury. This trial, both in the United States and in this commonwealth, is a part of the constitution as well as of the law.

The history and the general principles of this institution, celebrated so long and so justly, have already been explained to you at large. I shall, therefore, confine myself at present to such remarks, chiefly of a practical nature, as will arise from the usual course of proceedings in trials for crimes.

By the constitution of Pennsylvania, persons accused of crimes shall be tried by an impartial jury of the vicinage : or, in legal interpretation, of the county.d By the national constitution, crimes committed in any state shall be tried in that state: and by a law of the United States, f twelve, at least, of the jurors must be summoned from the very county, in which the crime was committed.

In the court of king's bench, there is' time allowed between the arraignment and the trial, for a jury to be

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