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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 reach him. 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 jurisdiction of such inferior court, and makes all subsequent proceedings therein en, tirely 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 conse quence 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.
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.
To arraign, is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him
i 2 Hal. P. C. 210.
k2 Hawk. P. C. 287. 4 Burr. 749.
in the indictment. The prisoner is to be called to the bar by his name; and it is laid down in our ancient books," 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 arraignment.
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.
Then the indictment is to be read to him distinctly in the English tongue, (which was law, even while all other proceedinge 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 arraigned 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 principal had never been indicted at all, and stood mute, had challenged about thirtyfive 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
a 2 Hal. P. C. 216.
b Bract. l. 3. de coron. c. 18. 3. Mirr. c. 5. sect. 1. § 54. Flet. l. 1. c. 31 § 1. Staundf. P. C. 78.
Brit. c. 5.
3 Inst. 34.
Kel. 10. 2 Hal. P. C. 219.
c State Trials, VI. 230.
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 still continues, that the accessory shall not be tried, so long as the principal remains liable to be tried hereafter. But by statute 1 Ann. c. 9. if the principal 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 upon the trial of the accessory, as well after as before the conviction of the principal, it seems to be the better opinion, and founded on the true spirit of justice, that the accessory is at liberty, if he can, to controvert the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact as in point of law.
When a criminal is arraigned, he either stands mute, or confesses the fact; which circumstances we may call incidents to 'the arraignment: or else he pleads to the indictment, which is to be considered as the next stage of proceedings. But, first, let us observe these incidents to the arraignment, of standing mute, or confession.
I. Regularly a prisoner is said to stand mute, when, being arraigned for treason or felony, he either, 1. Makes no answer at all: or, 2. Answers foreign to the purpose, or with such matter as is not allowable; and will not answer otherwise: or, 3. Upon having pleaded not guilty, refuses to put himself upon the country. If he says nothing, the court ought ex officio to impannel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei. If the latter appears to be the case, the judges of the court (who are to be of counsel for the prisoner, and to see that he hath law and justice) shall proceed to the trial, and examine all points as if he 2 Hal. P. C. 316.
f Foster, 365, &c.
had pleaded not guilty. But whether judgment of death can be given against such a prisoner, who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined.
If he be found to be obstinately mute, (which a prisoner hath been held to be, that hath cut out his own tongue,*) then, if it be on an indictment of high treason, it hath long been clearly settled, that standing mute is an equivalent to a conviction, and he shall receive the same judgment and execution.1 And as in this the highest crime, so also in the lowest species of felony, viz. in petit larciny, and in all misdemesnors, standing mute hath always been equiva lent to conviction. But upon appeals or indictments for other felonies, or petit treason, the prisoner was not, by the ancient law, looked upon as convicted, so as to receive judgment for the felony; but should, for his obstinacy, have received the terrible sentence of penance, or peine (which, as will appear presently, was probably nothing more than a corrupted abbreviation of prisone) forte et dure.
Before this was pronounced the prisoner had not only trina admonitio, but also a respite of a few hours, and the sentence was distinctly read to him, that he might know his danger:" and, after all, if he continued obstinate, and his offence was elergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it." Thus tender was the law of inflicting this dreadful punishment: but if no other means could prevail, and the pri soner, when charged with a capital felony, continued stubbornly mute, the judgment was then given against him without any distinction of sex or degree. A judgment, which was purposely ordained to be exquisitely severe, that by that very means it might rarely be put in execution.
The rack, or question, to extort a confession from criminals, is a practice of a different nature: this having been only used to compel a man to put himself upon his trial; that being a species of trial in itself. And the trial by
h 2 Hawk. P. C. 327.
i 2 Hal. P. C. 317.
* 3 Inst. 178.
P. C. 317.
m2 Hal. P. C. 320.
Hawk. P. C. 329. 1 Hal. P. C. 332.
rack is utterly unknown to the law of England; though once, when the dukes of Exeter and Suffolk, and other ministers of Henry VI. had laid a design to introduce the civil law into this kingdom as the rule of government, for a beginning thereof they erected a rack for torture; which was called in derision the duke of Exeter's daughter, and still remains in the tower of London: where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth." But when, upon the assassination of Villiers duke of Buckingham by Felton, it was proposed in the privy council to put the assassin to the rack, in order to discover his accomplices; the judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England." It seems astonishing that this usage of administering the torture, should be said to arise from a tenderness to the lives of men and yet this is the reason given for its introduction in the civil law, and its subsequent adoption by the French and other foreign nations: viz. because the laws cannot endure that any man should die upon the evidence of a false, or even a single witness; and therefore contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man's virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves!But there needs only to state accurately, in order most effectually to expose, this inhuman species of mercy, the uncertainty of which, as a test and criterion of truth, was long ago very elegantly pointed out by Tully: though he lived in a state wherein it was usual to torture slaves in order to furnish evidence: "tamen," says he, "illa tormenta gubernat doler, moderatur natura cujusque tum animi tum corporis regit quæsitor, flectit libido, corrumpit spes,
• 3 Inst. 35.
p Barr. 92. 496.
9 Rushw. Coll. i. 638. Cod. l. 9. t.41. l.8. &t. 47. 1. 16. Fortesc. de LL. Angl. c.22. The marquis Beccaria, ch. 16., in an exquisite piece of raillery, has proposed this problem, with a gravity and preci
VOL. IV.-PART II.
sion that are truly mathematical: "the force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him. confess himself guilty of a given crime."