Definition
A Law French term meaning "at another time" or "formerly." In legal usage, autrefois appears almost exclusively as a prefix in two criminal law pleas that together form the core of the common law double jeopardy defense at the pleading level:
1. Autrefois acquit: A plea in bar to a criminal prosecution asserting that the defendant was previously indicted and tried for the same offense and was acquitted. The plea operates as an absolute bar to retrial when the identity of the offense and the parties is established.
2. Autrefois convict: A plea in bar asserting that the defendant was previously indicted and tried for the same offense and was convicted. Like autrefois acquit, a successful plea bars the second prosecution entirely.
A third form, autrefois attaint, appeared in older English practice. It barred a second indictment on the ground that the defendant had already been attainted — that is, had suffered the civil and legal consequences of a capital conviction, including corruption of blood and forfeiture. This form is obsolete in American law and largely extinct in English law following the abolition of attainder.
Common Confusion
Autrefois acquit and autrefois convict are the formal pleading mechanisms for the double jeopardy defense, but researchers should not treat them as interchangeable with the constitutional double jeopardy guarantee itself. The Fifth Amendment's Double Jeopardy Clause covers substantially the same ground in American federal and state courts, but the autrefois pleas are common law forms with their own procedural requirements and historical development. In modern American practice, defendants rarely file a formal plea of autrefois acquit or autrefois convict by name; the protection is invoked by motion or as a constitutional defense. The autrefois terminology survives more robustly in English and Commonwealth criminal procedure than in American courts.
Why It Matters in Research
Researchers working in pre-twentieth-century American criminal records, pleading treatises, or English common law materials will encounter autrefois acquit and autrefois convict as formal technical pleas, not merely as descriptive phrases. Understanding their procedural status — pleas in bar, not pleas in abatement — matters for reading historical case records correctly.
The terminology creates a layered research problem: the underlying doctrine (no person shall be tried twice for the same offense) is ancient and continuous, but the vocabulary shifts. Nineteenth-century sources use autrefois language regularly. Twentieth-century American sources increasingly replace it with "double jeopardy" without always acknowledging the doctrinal overlap or the differences in how the tests were framed at common law versus under constitutional analysis.
Jurisdictional divergence is significant here. English and Commonwealth jurisdictions (Canada, Australia) continued to use autrefois pleading forms in codified criminal procedure long after American practice shifted. A researcher comparing Anglo-American criminal procedure across the nineteenth and early twentieth centuries must track which vocabulary each source is using and whether the underlying test for "same offense" is identical — it is not always.
Corpus connections: The term will appear in pleading manuals, criminal law treatises, and appellate records most frequently from roughly 1820 through 1920 in American sources. After that, autrefois language recedes but does not disappear; it surfaces in constitutional law discussions tracing the historical roots of the Double Jeopardy Clause, and in comparative law contexts.
Autrefois attaint is a dead branch for American research purposes but may appear in colonial-era records and in English sources through the nineteenth century. Researchers encountering it in historical materials should not assume it implies the same procedural posture as autrefois acquit or autrefois convict.
Historical Dictionary Support
Black's Law Dictionary (1st and 2nd editions) and Anderson's Dictionary of Law agree on the core definitions and treat autrefois as a prefix attached to acquit, convict, and attaint. Black's 2nd edition provides the most developed treatment among these three sources, defining autrefois acquit with specificity and citing illustrative cases.
All three sources reflect the Law French origin of the term without extensively tracing its procedural history. None of the three addresses the relationship between the autrefois pleas and the constitutional double jeopardy guarantee in any depth — an expected gap given their era, but one that matters to modern researchers who may assume the historical pleas and the constitutional doctrine map onto each other cleanly. They do not always.
Anderson's cross-references to ACQUITTAL and CONVICTION (Former) are useful navigational signals for period research: "former conviction" and "former acquittal" became the preferred American phrasing as autrefois receded from common usage.
Jurisdictional Note
In England and Commonwealth jurisdictions, autrefois acquit and autrefois convict remain recognized formal pleas in criminal procedure and appear in codified form in some jurisdictions. In American federal and state practice, the doctrine survives through the Double Jeopardy Clause and its state equivalents, but the autrefois terminology is rarely used in modern pleading.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Double Jeopardy; Pleas in Bar; Criminal Procedure (Historical)