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tions. The crimes against the parties themselves are larciny, rape, and arson. And for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burnt, may institute this private process. The only crime against one's relation, for which an appeal can be brought, is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation: but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confirmed, by an ordinance of king Henry the first, to the four nearest degrees of blood. It is given to the wife on account of the loss of her husband: there fore, 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 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 murder, 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 ap peal 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 "præscriptio annalis, quæ currit adversus actorem, si de homicida ei non constet intra annum a cæde facta, nec quenquam interea arguat et accuset.'"
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: 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
z Mirr. e. 2. §7.
a Stiernh. de jure Goth. 1. 3....
b Ibid. l. 1. c. 5.
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. I. 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 clergy, 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.c
If the appellee be acquitted, the appellor, by virtue of the statute of Westm. 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, 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. 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. 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; a custom, founded upon that savage spirit of family resentment, which prevailed universally through Europe after the ir
See pag. 305.
l. 1. c. 34 48. e 2 Hawk. P. C. 392.
f LL. Edm. §3.
8 M. 11 Hen. IV. 12. 3 Inst. 131.
ruption 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 Ame rica: as if the finger of nature had pointed it out to mankind, in their rude and uncultivated state. 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 indictment is the most general. I shall therefore confine my subsequent 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,
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. We 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.
h Robertson, Cha. V. i. 45.
1 Hal. P. C.9.
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 distrained, 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 nonappearance, a writ of capias shall issue, which commands the sheriff to take his body, and have him at the next assises; and if he cannot be taken upon the first capias, a second and a 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, or two in the case of other felonies, by statute 25 Edw. III. e. 14. though the usage is to issue only one in any felony; the provisions of this statute being in most cases found impracticable. And so, in the case of misdemesnors, it is now the usual practice for any judge of the court of king's bench, upou certi, ficate of an 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 ;) viz. forfeiture of goods and chattels. But an outlawry in treason or felony amounts to a con
a See Append. § 1.
Hal. P. C. 195.
c See Vol. III. pag. 958, &c.
viction and attainder of the offence charged in the indictment, as much as if the offender had been found guilty by his country. His life is however still under the protection of the law, as hath formerly been observed: 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; 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, unless it happens in the endeavour to apprehend him. 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.
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, S. It
d 2 Hal. P. C. 205.
See pag. 162.
f Mirr. c. 4. Co. Litt. 128.
81 Hal. P. C. 497.