It is given to the wife on account of the loss of her husband: therefore, if she marries again, before or pending her appeal, it is lost and gone; or,

if she marries after judgment, she shall not demand execution. The [315] heir, as was said, must also be heir male, and such a one as was

the next heir by the course of the common law, at the time of the killing of the ancestor. But this rule has three exceptions: 1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal: 2. If there be no wife, and the heir be accused of the mur der, the person, who next to him would have been heir male, shall bring the appeal: 3. If the wife kills her husband, the heir may appeal her of the death. And, by the statute of Gloucester, 6 Edw. I. c. 9. all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party which seems to be only declaratory of the old common law for in the Gothic constitutions we find the same "praescriptio annális, quae currit adversus actorem, si de homicida ei non "constet intra annum à caede facta, nec quenquam interea arguut et accu"set." (a)

These appeals may be brought previous to any indictment and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. In like manner as by the old Gothic constitution, if any offender gained a verdict in his favour, when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offence: (b) but, on the contrary, if he made his peace with the king, still he might be prosecuted at the suit of the party. And so, with us, if a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, still he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year and day be past, by virtue of the statute 3 Hen. VII. c. 1. in order to be forthcoming to answer any appeal for the same felony, not having as yet been punished for it, though, if he hath been found guilty of manslaughter on an indictment, and hath had the benefit of cler. gy, and suffered the judgment of the law, he cannot afterwards be appealed; for it is a maxim in law that "nemo bis punitur pro eodem delicto." Before this statute was made, it was not usual to indict a man for homicide within the time limited for appeals; which produced very great inconvenience, of which more hereafter.

If the appellee be acquitted, the appellor (by virtue of the statute of [316] West. 2. 13 Edw. I. c. 12.) shall suffer one year's imprisonment, and pay a fine to the king, besides restitution of damages to the party for the imprisonment and infamy which he has sustained: and, if the appellor be incapable to make restitution, his abettors shall do it for him, and also be liable to imprisonment. This provision, as was foreseen by the author of Fleta, (d) proved a great discouragement to appeals; so that thenceforward they ceased to be in common use.

If the appellee be found guilty he shall suffer the same judgment, as if he had been convicted by indictment: but with this remarkable difference; that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it, than he can remit the damages recovered on an action of battery. (e) In like manner as, while the weregild continued to be paid as a fine for homicide, it could not be remitted by the king's authority. (f)

b. lbid. l. 1. c. 5. e 2 Hawk, P. C. 392.

a Sternh. de jure Goth. 1. S. c. 4. 8.1. c. 34.48.

o See page 335.
fLJ, Edm. 8.

And the ancient usage was, so late as Henry the Fourth's time, that all the relations of the slain should drag the appellee to the place of execution: (g) a custom founded upon that savage spirit of family resentment, which prevailed universally through Europe after the irruption of the northern nations, and is peculiarly attended to in their several codes of law; and which prevails even now among the wild and untutored inhabitants of America: as if the finger of nature had pointed it out to mankind, in their rude and uncultivated state. (h) However, the punishment of the offender may be remitted and discharged by the concurrence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may discharge an appeal ; (i) “nam quilibet potest renunciare juri pro se introducto.”

These are the several methods of prosecution instituted by the laws of England for the punishment of offences; of which that by [317] indictment is the most general. I shall therefore confine my sub

sequent observations principally to this method of prosecution; remarking by the way the most material variations that may arise, from the method of proceeding by either information or appeal.

CHAP. XXIV.

TMENT.

OF PROCESS UPON AN INDICTMENT.

We are next, in the fourth place, to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it.' Wo have hitherto supposed the offender to be in custody before the finding of the indictment; in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled, or secretes himself in capital cases; or hath not, in smaller misdemesnors, been bound over to appear at the assises or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And, if it be found, then process must issue to bring him into court; for the indictment cannot be tried, unless he personally appears. according to the rules of equity in all cases, and the express provision of statute 28 Edw. III. c. 3. in capital ones, that no man shall be put to death, without being brought to answer by due process of law.

The proper process on an indictment for any petit misdemesnor, or on a penal statute, is a writ of venire facias, which is in the nature of a summons to cause the party to appear. And if by the return to such venire it appears, that the party hath lands in the county whereby he may be distreined, then a distress infinite shall be issued from time to time till he appears. But if the sheriff returns that he hath no lands in his bailiwick, then (upon his non-appearance) a writ of capias shall issue, which commands the sheriff to take his body, and have him at the next [319]

g M. 11 Hen, IV 12. 3 Inst. 131.

h Robertson, Ch. V. i 45.

i 1 Hal. P. C. 9.

(1) As to the process in general, see Dalt. J. c. 193.; Com. Dig. Process, A. 1. ; Burn J. Process; Williams J. Process; 1 Chit. C. L. 2 ed. 337 to 370

assises; and if he cannot be taken upon the first capias, a second and third shall issue, called an alias, and a pluries capias. But, on indictments for treason or felony, a capias is the first process: and, for treason or homicide, only one shall be allowed to issue, (a) or two in the case of other felonies, by statute 25 Edw. III. c. 14., though the usage is to issue only one in any felony; the provisions of this statute being in most cases found impracticable. (b) And so, in the case of misdemesnors, it is now the usual practice for any judge of the court of king's bench, upon certificate of and indictment found, to award a writ of capias immediately, in order to bring in the defendant. But if he absconds, and it is thought proper to pursue him to an outlawry, then a greater exactness is necessary. For, in such case, after the several writs have issued in a regular number, according to the nature of the respective crimes, without any effect, the offender shall be put in the exigent in order to his outlawry; that is, he shall be exacted, proclaimed, or required to surrender, at five county courts ; and if he be returned quinto exactus, and does not appear at the fifth exaction or requisition, then he is adjudged to be outlawed, or put out of the protection of the law: so that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwise."

The punishment for outlawries upon indictments for misdemesnors, is the same as for outlawries upon civil actions (of which, and the previous process by writs of capias, exigi facias, and proclamation, we spoke in the preceding book); (c) viz. forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender had been

found guilty by his country. (d) His life is however still under [320] the protection of the law, as hath formerly been observed: (e) so

that though anciently an outlawed felon was said to have caput lupinum, and might be knocked on the head like a wolf, by any one that should meet him; (f) because, having renounced all law, he was to be dealt with as in a state of nature, when every one that should find him might slay him yet now, to avoid such inhumanity, it is holden that no man is entitled to kill him wantonly or wilfully; but in so doing is guilty of murder, (g) unless it happens in the endeavour to apprehend him. (h) For any person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him to execution. But such outlawry may be frequently reversed by writ of error; the proceedings therein being (as it is fit they should be) exceedingly nice and circumstantial: and, if any single minute point be omitted or misconducted, the whole outlawry is illegal, and may be reversed: upon which reversal the party accused is admitted to plead to, and defend himself against, the indictment.

a See Append. § 1.

c See Book III. page 283, 4.

f Mirr. c. 4. Co. Litt. 128.

b 2 Hal. P. C. 195.

d 2 Hal. P. C. 205. g 1 Hal. P. C. 497.

e See page 178.
h Bracion, fol. 125.

(2) Now by the 48 Geo. III. c. 58. when any person is charged with an offence below the degree of felony, one of the judges may, on an affidavit thereof, or on the production of an indictment, or an information filed, issue his warrant for apprehending and holding him to bail; and if he neglects or refuses to become so bound, he may be committed to gaol until he conforms, or is discharged

(3) See further as to outlawry, 1 Chit. C. L 347 to 370. Bac. Ab. Outlawry.

(4) In most cases now in which a person convicted by a verdict is deprived of clergy, a person outlawed will also be ousted of clergy; yet some few instances may perhaps still remain where a person outlawed will have clergy, though if he had been tried for the same offence, he would not have been entitled to that privilege. See Foster, 358, 2 Leach. Hawk, 481. 4 T. R. 543.

Thus much for process to bring in the offender after indictment found; during which stage of the prosecution it is, that writs of certiorari facias are usually had, though they may be had at any time before trial, to certify and remove the indictment, with all the proceedings thereon. from any inferior court of criminal jurisdiction into the court of king's bench; which is the sovereign ordinary court of justice in causes criminal. And this is frequently done for one of these four purposes; either, 1. To consider and determine the validity of appeals or indictments and the proceedings thereon and to quash or confirm them as there is cause: or, 2. Where it is surmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prisoner or defendant tried at the bar of the court of king's bench, or before the justices of nisi prius: or, 3. It is so removed, in order to plead the king's pardon there: or, 4. To issue process of outlawry against the offender, in those counties or places where the process of the inferior judges will not [321] reach him. (i) Such writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes the jurisdietion of such inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal; unless the court of king's bench remands the record to the court below, to be there tried and determined. A certiorari may be granted at the instance of either the prosecutor or the defendant: the former as a matter of right, the latter as a matter of discretion; and therefore it is seldom granted to remove indictments from the justices of gaol-delivery, or after issue joined or confession of the fact in any of the courts below. (k)

At this stage of prosecution also it is, that indictments found by the grand jury against a peer must in consequence of a writ of certiorari be certified and transmitted into the court of parliament, or into that of the lord high steward of Great Britain; and that, in places of exclusive jurisdiction, as the two universities, indictments must be delivered (upon challenge and claim of cognizance) to the courts therein established by charter, and confirmed by act of parliament to be there respectively tried and determined.

CHAP. XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.'

WHEN the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned thereon; which is the fifth stage of criminal prosecution.

2

To arraign, is nothing else but to call the prisoner to the bar of the

i 2 Hal. P. C. 210.

k 2 Hawk. P. C. 287. 4 Burr. 749

(5) As to this writ in general, see Fitz. K. B. 245. a; Bac. Ab. Certiorari, A.; Com. Dig. Certiorari, A. 1.; Burn J. Čertiorari; Williams J. Certiorari; 1 Chit. C. L. 2 ed. 371 to 402.

(1) See further as to arraignment and its incidents, 1 Chit. C. L. 414 to 431.; Burn's J. Arraignment; Williams J. Arraignment.

(2) This word in Latin (lord Hale says) is no other than ad rationem ponere, and in French ad reson, or abbreviated a resn. 2 Hal. P. C. 216.

court, to answer the matter charged upon him in the indictment. (a) The prisoner is to be called to the bar by his name; and it is laid down in our ancient books, (b) that, though under an indictment of the highest nature, he must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape, and then he may be secured with irons. But yet in Layer's case, A. D. 1722, a difference was taken between the time of arraignment and the time of trial; and accordingly the prisoner stood at the bar in chains during the time of his arraign. ment. (c)

[323] When he is brought to the bar, he is called upon by name to hold up his hand which, though it may seem a trifling circumstance, yet is of this importance, that by the holding up of his hand constat de persona, and he owns himself to be of that name by which he is called. (d) However, it is not an indispensable ceremony; for. being calculated merely for the purpose of identifying the person, any other acknowledgment will answer the purpose as well; therefore, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient. (e) 5

Then the indictment is to be read to him distinctly in the English tongue (which was law, even while all other proceedings were in Latin, that he may fully understand his charge. After which it is to be demanded of him, whether he be guilty of the crime whereof he stands indicted, or not guilty. By the old common law the accessory could not be arraigne till the principal was attainted, unless he chose it; for he might waive the benefit of the law and therefore principal and accessory might, and may still, be arraigned, and plead, and also be tried together. But otherwise, if the prin cipal had never been indicted at all, and stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessory in any of these cases could not be arraigned: for non constitit whether any felony was committed or no, till the principal was attainted; and it might so happen that the accessory should be convicted one day, and the principal acquitted the next, which would be absurd. However, this absurdity could only happen, where it was possible, that a trial of the principal might be had. subsequent to that of the accessory; and therefore the law sill continues, that

the accessory shall not be tried, so long as the principal remains li[324] able to be tried hereafter. But by statute Ann. c. 9. if the prin

cipal be once convicted, and before attainder (that is, before he receives judgment of death or outlawry) he is delivered by pardon, the benefit of clergy, or otherwise; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases, in which no subsequent trial can be had of the principal, the accessory may be proceeded against, as if the principal felon had been attainted; for there is no danger of future contradiction. And

a 2 Hal P. C. 216.

b Bract, 1. 3 de coron. c. 18. § 3. Mirr. c. 5. sect. 1. §54 Flet. I. 1. c. 31. § 1. Erit, c. 5. Staundf. P. C. 73. 3.Inst. 34. Kel. 10. 2 Hal. P. C. 219. 2 Hawk. P. C. 308. e Raym. 403.

c State Trials, VI. 230.

d 2 Hal. P. C. 219.

(3) As to obtaining a copy of the indictment, assigning counsel, appearing and defending by attorney, and defending in forma pauperis, see 1 Chit C. L. 2 ed. 403 to 414. post,

351.

(4) And it has since been held, that the court has no authority to order the irons to be taken off, till the prisoner has pleaded, and the jury are charged to try him. Waite's case, Leach, 34 (5) It is not usual to require a peer to hold up his hand. 2 Hale, 219. n. a. Hawk. b. 2. c. 28.

3.2.

(6) See also the 22 Geo. III. c. 58. 29 Geo. II. c. 50.