Definition
A peremptory plea is a plea that goes to the substance and merits of a claim, asserting matter that, if sustained, destroys the right of action or prosecution entirely rather than merely delaying it or objecting to the form of the proceeding. The term is predominantly historical, drawn from the common law pleading system, but its logic survives in modern practice under different labels.
In civil practice, a peremptory plea was a plea in bar — one that answered the merits and, if successful, barred the plaintiff's right to recover absolutely and permanently. It stood in contrast to a dilatory plea, which attacked jurisdiction, venue, or the form of the action without addressing its underlying merits.
In criminal practice, the peremptory plea encompassed the classic pleas of guilty, not guilty, autrefois acquit, and autrefois convict. Each of these addresses the defendant's legal exposure directly: a guilty plea concedes liability, a not guilty plea contests it, and the autrefois pleas assert that a prior disposition bars re-prosecution entirely. All were "peremptory" because they could not be evaded or postponed — they demanded a final resolution on the merits or on a bar to further proceedings.
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Common Confusion
PEREMPTORY PLEA should not be confused with PEREMPTORY CHALLENGE. Despite sharing the modifier "peremptory," these are entirely distinct institutions. A peremptory challenge is a trial procedure allowing counsel to strike a prospective juror without stating a cause; it has nothing to do with pleading. The shared word "peremptory" reflects only a common Latin root meaning absolute or final, not any substantive connection between the two devices. Researchers encountering "peremptory" in older sources must determine from context whether the passage concerns pleading or jury selection.
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Recognized Forms
/SUBTYPES
In classical common law pleading, peremptory pleas divided into two recognized categories:
Pleas in bar: The primary subtype. These pleas set up matter that, if found for the defendant, permanently extinguished the plaintiff's right of action. Statute of limitations, release, accord and satisfaction, and res judicata were standard examples. In criminal proceedings, autrefois acquit and autrefois convict operated as peremptory pleas in bar by invoking double jeopardy principles.
The general issue: A subcategory of peremptory plea in which the defendant denied the entire claim without alleging any specific new matter. In criminal practice, the not guilty plea is its direct descendant.
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Why It Matters in Research
Researchers working in historical sources will encounter "peremptory plea" as the organizing concept that modern practice has largely dissolved into its component parts. Modern courts and practitioners say "plea in bar," "motion to dismiss on the merits," "guilty plea," or "double jeopardy plea" without using the umbrella term. Understanding the historical category is essential for reading pre-twentieth-century treatises, appellate opinions, and pleading manuals, where the distinction between peremptory and dilatory pleas structured the entire analysis.
The key research trap is assuming the term maps cleanly onto modern guilty or not guilty pleas. It does in part — those pleas are peremptory — but the civil side of the concept is equally important historically and is invisible in modern criminal procedure sources. A researcher following "peremptory plea" citations from Bouvier or Burrill into nineteenth-century civil cases may find the doctrine applied to release, payment, or former judgment defenses, not to any criminal context at all.
Jurisdictional variation in how the dilatory/peremptory distinction was maintained also affects research. Code pleading states, which abolished much of the common law pleading structure from the mid-nineteenth century onward, folded dilatory and peremptory defenses together in the answer or in motions, making older categorical distinctions less operationally meaningful while still referencing them in commentary.
For criminal procedure research specifically, the modern analogs — guilty plea, autrefois acquit, double jeopardy — are indexed separately in court records and digests. Do not rely on "peremptory plea" as a search term in post-1938 federal materials or post-code-pleading state materials; the phrase will not surface reliably.
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Historical Dictionary Support
Bouvier and Burrill agree on the core: a peremptory plea is founded on matter that goes to the right of action itself, not to procedure or form. Bouvier's definition is direct — "a plea which goes to destroy the right of action itself; a plea in bar or to the action" — and cross-references Stephens on Pleading, Wooddeson's Lectures, and Saunders on Pleading and Evidence, all standard authorities of the classical common law pleading tradition. The Burrill entry, as preserved in the source material here, begins "[i]n practice. A plea founded upon matter which tends" — the text trails off in the available excerpt, but the framing "founded upon matter" aligns with Bouvier's substance-over-form distinction.
Neither dictionary gives significant attention to the criminal plea context specifically, reflecting the treatise tradition of treating guilty and not guilty pleas as established practice requiring little doctrinal elaboration. The richer analysis in both dictionaries concerns the civil pleading taxonomy. This is a gap that modern criminal procedure sources correct: the peremptory character of the autrefois pleas and the not guilty plea is now far more elaborated in constitutional double jeopardy doctrine than anything the historical dictionaries contemplated.
Both dictionaries implicitly treat the dilatory/peremptory distinction as settled and self-evident. Modern researchers should not take that confidence at face value — the line between a plea that "delays" and one that "destroys" was litigated frequently, and courts did not always draw it consistently.
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Jurisdictional Note
The dilatory/peremptory distinction was a feature of common law pleading and was adopted across American jurisdictions, but its practical significance declined sharply as states adopted code pleading (following the New York Field Code of 1848) and later as federal courts adopted the Federal Rules of Civil Procedure in 1938. In jurisdictions that retain or reference common law pleading principles — including some state courts interpreting older statutes or equity practices — the distinction retains interpretive relevance.
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Encyclopedia Cross-Reference
Arraignment and Entry of Plea — The Law Mind Criminal Law Encyclopedia
Plea Bargaining — Law, Practice, and Judicial Oversight — The Law Mind Criminal Law Encyclopedia
Jury Selection — Voir Dire, Peremptory Challenges, and Batson — The Law Mind Criminal Law Encyclopedia (for distinguishing peremptory challenges from peremptory pleas)
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