Definition
Special pleas are pleadings that raise specific, affirmative defenses or grounds for relief distinct from a simple denial of the opposing party's allegations. Rather than merely traversing (denying) the facts alleged, a special plea interposes new matter that, if established, defeats or suspends the action or prosecution entirely.
The term operates in both civil and criminal contexts:
1. Civil special pleas: In common law pleading, a special plea is any plea other than the general issue. Instead of denying the plaintiff's claim outright, the defendant admits the factual basis of the claim but asserts new matter that bars or qualifies the plaintiff's right to recover — for example, infancy, coverture, the statute of limitations, accord and satisfaction, or release.
2. Criminal special pleas: In criminal procedure, special pleas in bar go to the merits of the prosecution and assert a specific reason why the accused should be discharged without trial on the merits. The four classical special pleas in bar in criminal matters are: (1) autrefois acquit (former acquittal), (2) autrefois convict (former conviction), (3) autrefois attaint (former attainder, largely obsolete), and (4) pardon.
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Common Confusion
Special pleas are frequently confused with the general issue. The general issue is a flat denial — in a debt action, "he does not owe"; in a criminal case, "not guilty." A special plea, by contrast, confesses the gravamen of the claim or charge to the extent necessary to make the new affirmative matter operative. This distinction was technically rigid under common law pleading but has been largely dissolved in modern civil procedure under notice-pleading regimes, where affirmative defenses are now raised by answer rather than by formally labeled special pleas. In criminal practice, however, the classical special pleas in bar retain their identity and procedural significance.
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Recognized Forms
/SUBTYPES
Civil special pleas (common law): Statute of limitations; infancy; coverture; release; accord and satisfaction; payment; bankruptcy discharge; res judicata.
Criminal special pleas in bar (classical four): Autrefois acquit; autrefois convict; autrefois attaint (obsolete); pardon.
Criminal special pleas also historically included pleas to the jurisdiction and pleas in abatement, which addressed procedural or technical defects rather than the merits of the prosecution.
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Why It Matters in Research
The term "special pleas" carries significantly different weight depending on the era of the source material. In common law pleading treatises and pre-code cases (pre-Field Code 1848 in New York; pre-Federal Rules 1938 federally), "special plea" is a term of art with precise procedural consequences: a defective special plea could be stricken without reaching its substance, and the pleader was bound by its admissions. Researchers reading pre-code decisions must not import modern assumptions about affirmative defenses into this earlier framework.
After code pleading and then notice pleading reformed civil procedure, the formal category of "special plea" disappeared from civil practice. What were once special pleas are now simply "affirmative defenses" raised in an answer under Rule 8(c) of the Federal Rules of Civil Procedure and equivalent state provisions. Finding a reference to a "special plea" in a civil context after the mid-twentieth century almost always signals either a jurisdiction still using older procedural terminology, a historical quotation, or sloppy usage.
In criminal research, the special pleas in bar — particularly autrefois acquit and autrefois convict — remain live doctrine. They are the common law ancestors of the modern Double Jeopardy Clause and continue to appear in constitutional litigation, extradition proceedings, and international criminal law contexts. Researchers connecting historical criminal procedure materials to modern Double Jeopardy doctrine should track how these pleas translated (imperfectly) into constitutional standards.
Trap for researchers: Historical sources frequently use "plea in bar" and "special plea" interchangeably in criminal contexts, but more carefully distinguish them in civil contexts, where a plea in bar is a subcategory of special pleas. Read the surrounding procedural framework before assuming equivalence.
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Historical Dictionary Support
Rapalje & Lawrence capture the dual structure well: special pleas in civil matters are defined by their affirmative character (infancy, coverture, statute of limitations), while criminal special pleas in bar are defined by their function of discharging the prisoner from prosecution by operation of established legal grounds. The four-part criminal taxonomy Rapalje & Lawrence reference (autrefois acquit, autrefois convict, autrefois attaint, pardon) is consistent across the common law treatise tradition.
What Rapalje & Lawrence do not address — and what historical dictionaries generally underemphasize — is the procedural formalism surrounding how special pleas were constructed, the consequences of surplusage or admission within them, and the demurrer practice that often followed. Researchers relying solely on dictionary definitions of "special plea" without consulting a pleading treatise (such as Chitty on Pleading or Gould on Pleading) will miss the mechanical rules that governed whether the plea could survive challenge.
Historical sources also understate the jurisdictional variation in terminology: some American jurisdictions labeled what others called "special pleas" as simply "pleas in bar" or "affirmative defenses" well before code reform, making cross-jurisdictional comparison of early American decisions unreliable on terminology alone.
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Jurisdictional Note
Modern civil procedure in federal courts and most states has abolished the formal category of special pleas in favor of affirmative defenses raised by answer. In criminal practice, the core special pleas in bar survive in all American jurisdictions through Double Jeopardy doctrine and statutory pardon procedures, though the pleading mechanics vary by state. A small number of states with hybrid pleading codes may retain "special plea" terminology in their criminal procedure rules.
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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
Guilty Pleas: Voluntariness, Collateral Consequences, and Withdrawal — The Law Mind Criminal Law Encyclopedia
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