Definition
A special plea is a formal pleading that responds to an opposing party's claim by introducing new affirmative matter — facts beyond a simple denial — that, if proven, defeats or limits the claim as a matter of law. It is distinguished from the general issue, which merely denies the allegations in the opposing pleading, by the fact that a special plea admits (at least arguendo) the basic claim but asserts a specific legal reason why judgment should not follow.
In common law pleading, the special plea was primarily a type of plea in bar — a pleading that permanently bars the opposing party's right to recover or proceed. However, it could also take the form of a traverse (a denial of a specific material fact) when the targeted fact was so particular that a general denial would not adequately put it in issue.
The term carries distinct weight in two contexts:
1. Civil pleading (historical): In the formal system of common law pleading, a special plea in bar introduced new defensive matter — such as release, payment, accord and satisfaction, or a statute of limitations defense — that had to be specifically pleaded or it was waived. The opposing party then had to reply to the new matter, which could generate a further round of pleading until a single issue of law or fact emerged for determination.
2. Criminal procedure: A special plea in criminal cases is a pleading interposed before the general plea of guilty or not guilty that raises a threshold legal question about whether the prosecution may proceed at all. The classic criminal special pleas are autrefois acquit (prior acquittal), autrefois convict (prior conviction), and pardon — each asserting that the defendant cannot lawfully be tried for the charged offense regardless of guilt.
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Common Confusion
The special plea is frequently conflated with the general issue in historical sources, even though the distinction is the foundation of formal pleading doctrine. The general issue denies everything and puts the whole case in issue; the special plea concedes the general claim and defeats it by new, specific matter. Confusing the two collapses a distinction that drove much of common law pleading's technical architecture.
In modern research, "special plea" is also sometimes loosely applied to any unusual or atypical plea, including pleas of not guilty by reason of insanity or nolo contendere. These are not special pleas in the technical sense. The technical special plea in criminal law is limited to threshold defenses that, if sustained, prevent trial entirely — not defenses that merely modify how guilt is assessed at trial.
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Core Elements
For a plea to qualify as a special plea in the traditional sense, it must:
1. Be directed to the action itself, not merely to a subsidiary procedural point.
2. Introduce new affirmative matter not already appearing in the pleading it answers — or, if in traverse form, deny a particular material fact with specificity.
3. Be pleaded with sufficient particularity to give the opposing party notice of the exact ground relied upon.
4. If a plea in bar, constitute a complete defense to the claim or prosecution as pleaded — partial defenses were handled by different pleading devices.
In criminal practice, the special pleas of autrefois acquit and autrefois convict carry the additional requirement that the prior proceeding must have reached a final judgment on the merits for the same offense, satisfying double jeopardy principles.
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Why It Matters in Research
The special plea is a term whose practical importance has nearly inverted over time. In historical sources — particularly anything predating the Field Code reforms of the mid-nineteenth century and the later adoption of notice pleading under systems derived from the Federal Rules of Civil Procedure — the special plea is a live, workaday concept with elaborate technical rules. Researchers working with pre-code American cases, English common law materials, or treatises like Stephen on Pleading will encounter the special plea constantly and need to understand its precise function within the pleading sequence.
In modern civil practice, code and notice pleading systems abolished most of the formal special plea machinery. Affirmative defenses replaced the special plea in bar, and the pleading exchange it generated was collapsed into far simpler procedural forms. A researcher who reads "special plea" in a modern civil context is likely reading a loose usage or an archaism; in a historical civil context, it has precise doctrinal content.
In criminal practice, the picture is more durable. The special pleas of autrefois acquit and autrefois convict survive in modified form as the constitutional double jeopardy doctrine in American law and remain live procedural devices in English and Commonwealth criminal procedure. Researchers tracking the development of double jeopardy doctrine will trace it directly through the special plea's history.
Trap for researchers: Because Black's and Burrill's definitions are nearly identical and cite the same source (Stephens on Pleading), the apparent consensus in the historical dictionaries masks the considerable technical elaboration that treatise sources contain. The dictionary definition tells you what a special plea is; it does not tell you the rules governing its form, the pleading consequences of errors, or the doctrine governing duplicity and departure — all of which matter when reading contested cases.
Cross-corpus note: The criminal special pleas connect directly to arraignment procedure and the broader plea architecture addressed in the encyclopedia entries below.
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Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary offer identical definitions, both citing Stephens on Pleading at pages 52 and 162. The convergence is not surprising — both works drew heavily on the same common law pleading treatise tradition, and Stephen's Principles of Pleading was the dominant American and English authority on the subject.
The shared definition captures the essentials accurately: a special plea in bar is distinguished from the general issue by the presence of affirmative matter, with the caveat that it may also appear as a traverse. What the dictionary entries do not capture is the downstream procedural logic — namely, that the special plea generated a responsive pleading obligation (the replication) that continued the pleading sequence, or that the failure to plead specially when the rules required it resulted in waiver. These consequences were the real significance of the distinction in practice.
Neither dictionary distinguishes the civil and criminal versions of the term with any care, treating the special plea primarily as a common law civil pleading concept and noting the criminal application only implicitly through the general definition. Researchers working in criminal history should supplement with dedicated criminal procedure sources.
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Jurisdictional Note
In English and Commonwealth jurisdictions, the criminal special pleas of autrefois acquit and autrefois convict remain formal procedural devices governed by specific rules of court. In American federal and state courts, these defenses are constitutionally grounded in the Double Jeopardy Clause and are typically raised by pretrial motion rather than by formal plea, though some states retain the special plea form by rule or statute.
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Encyclopedia Cross-Reference
Arraignment and Entry of Plea — The Law Mind Criminal Law Encyclopedia (criminal_198)
Plea Bargaining: Law, Practice, and Judicial Oversight — The Law Mind Criminal Law Encyclopedia (criminal_202)
Guilty Pleas: Voluntariness, Collateral Consequences, and Withdrawal — The Law Mind Criminal Law Encyclopedia (criminal_203)
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