tom, a process was certainly given, for recovering the weregild by the party to whom it was due; it seems that, when these of [*314, fences by degrees grew no longer redeemable, the private process was still continued, in order to insure the infliction of punishment upon offender, though the party injured was allowed no pecuniary compensation for the offence. the But, though appeals were thus in the nature of prosecutions for some atrocious injury committed more immediately against an individual, yet i also was anciently permitted, that any subject might appeal another subject of high treason, either in the courts of common law (w), or in parlia ment, or (for treasons committed beyond the seas) in the court of the high constable and marshal. The cognizance of appeals in the latter still continues in force; and so late as 1631 there was a trial by battel awarded in the court of chivalry, on such an appeal of treason (x): but that in the first was virtually abolished (y) by the statutes 5 Edw. III. c. 9. and 25 Edw. III. c. 24, and in the second expressly by statute 1 Hen. IV. c. 14. So that the only appeals now in force, for things done within the realm. are appeals of felony and mayhem. An appeal of felony may be brought for crimes committed either agains. the parties themselves, or their relations. The crimes against the parties themselves are larceny, 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 rela tion, 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 (z). 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 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 [*315] killing of the ancestor. But this rule hath 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 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 annalis, quae currit adversus actorem, si de homicida er non constet intra annum a caede facta, nec quenquam interea arguat et accuset (a).” These appeals may be brought previous to any indictment and if the appellee be acquitted thereon, he cannot be afterwards indicted for the saine offence. In like manner as by the old Gothic constitution, if any offer der 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 matter for money, nothing more is said about (Rushw. vol. 2, part 2, p. 112.) (Lady M. W. Montague, lett. 42.) () Britt. c. 22 's) By Donald lord Rea against David Ramsey (y) Hal. P. C. 349. (z) Mirr. c. 2, ◊ 7. (a) Stiernh. de jure Goth. 1. 3. c. 4. 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 clergy, and suffered the judgment of the law, he cannot af terwards 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). [*316] *If the appellee be acquitted, the appellor (by virtue of the sta tute 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 (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 (ƒ) 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 sprit 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 indict[*317] ment, so the appellant by his release may discharge an appeal (i) ; nam quilibet potest renunciare juri pro se introducto (20).' (b) Stiernh. de jure Goth. 1. 1, c. 5. (c) See page 335. (d) l. 1, c. 34, ◊ 48. (e) 2 Hawk. P C. 392. (20) These appeals had become nearly obsolete, but the right still existing was claimed, and in part exercised, in the year 1818, by William Ashford, eldest brother and heir at law of Mary Ashford, who brought a writ of appeal against Abraham Thornton for the murder of his sister. Thornton had been tried at the Warwick Summer assises, 1817, for the murder, and acquitted, though under circumstances ci strong suspicion. The appellee, (f) LL. Edm. 3. (g) M. 11 Hen. IV. 12. 3 Inst. 131. when called upon to plead, pleaded not gud ty, and that he was ready to defend himself by his body;" and taking his glove off, he threw it upon the floor of the court. A counterplea was afterwards delivered in by the appellant, to which there was a replication. A general demurrer followed, and joinder thereon. See a full detail of the proceedings in that singu. lar case, in the Report of it, unler tle name of Ashford v. Thornton, 1 B and A. 40% These are the several methods of prosecution instituted by the laws o 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. CHAPTER XXIV. OF PROCESS UPON AN INDICTMENT. WE are next, in the fourth place, to inquire into the manner of issuing process (1), 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 misdemeanors, 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, tha no man shall be put to death, without being brought to answer by due process of law (2). The proper process on an indictment for any petit misdemeanor, 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 non-appearance) a writ of capias *shall is- [*319] sue, which commands the sheriff to take his body, and have him was held in that case, that, where in an appeal of death, the appellee wages his battle, the counterplea, to oust him of this mode of trial, must disclose such violent and strong presumptions of guilt, as to leave no possible doubt in the minds of the court; and, therefore, that a counterplea, which only stated strong circumstances of suspicion, was insufficient. It was also held, that the appellee may reply fresh matter, tending to shew his innocence, as, an alibi, and his former acquittal of the same offence on an indictment. But it was doubted whether, when the counterplea is per se insufficient, or where the replication is a good answer to it, the court should give judg. ment that the appellee be allowed his wager of battle, or that he go without day. Therefore, the appellant praying no further judgment, the wurt, by consent of both parties, ordered that udgment should be stayed in the appeal, and un the appellee should he discharged. This Vo II case, the first of the kind that had occurred for more than half a century, (See Bigby v. Ken nedy, 5 Burr. 2643, 2 W. Bl. 713; Rex v. Taylor, 5 Burr, 2793; Smith v. Taylor, id ibid; the last cases upon the subject, where the mode of proceeding is detailed at large,) led to the total abolition of appeals of murder as well as of treason, felony, or other offences, together with wagers of battle, by the passing of the statute 59 G. III. c. 46. (1) As to process in general, see Dalt. J. c. 193, Com. Dig. Process, A. 1; Burn. J. Process; Williams J. Process; 1 Chit. C. L. ed. 337 to 370. 82 at the next assises; and if he cannot be taken upon the first capias, a se cond and third shall issue, called an alias, and a pluries capias. But, on in dictments 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 o other lonies, 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 misdemeanors, it is now he usual practice for any judge of the court of king's bench, upon certi ficate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant (3). 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 (4). The punishment for outlawries upon indictments for misdemeanors, 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 out lawry in treason or felony amounts to a conviction and attainder of the of fence charged in the indictment, as much as if the offender had been found guilty by his country (d) (5). His life is however still under the [*320] protection of the law, as hath formerly been observed (e): so that hough 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 misconduct. ed, the whole outlawry is illegal, and may be reversed upon which re versal the party accused is admitted to plead to, and defend himself against, the indictment. (a) See Appendix, ◊ 1. (b) 2 Hal. P. C. 195. (c) See Book III. page 283, 284 (d) 2 Hal. P. C. 205. (3) 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 cound, he may be committed to gaol until he conforms, or is discharged. (4) Outlawry is abolished in New-York, ex Thus much for process to bring in the offender after indic ment found; during which stage of the prosecution it is, that writs of certiorari facias (6) are usually had, though they may be had at any time before trial (7) 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 (3); 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 kings'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 [321 inferior judges will not reach him (i). Such writ of certiorari, when issued and delivered to the inferior court for removing any record of other proceeding, as well upon indictment as otherwise, supersedes the jurisdiction 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 chai lenge and claim of cognizance) to the courts therein established by charter, and confirmed by act of parliament to be there respectively tried and determined. (i) 2 Hal. P. C. 210. (6) As to this writ in general, see Fitz. K. B. 245. a; Bac. Ab. Certiorari A. Com. Dig. Certiorari, A. 1; Burn J. Certiorari; Williams J. Certiorar; 1 Chit. C. L. 2 ed. 371 to 402. (7) In New-York, no certiorari lies to remove an indictment from the general sessions to the supreme court or oyer and terminer be fore trial: nor does it lie to remove an indictment from the oyer and terminer to the supreme court before trial, unless allowed by a justice the supreme court or a circuit judge. (2 R. S. 732, 81, &c.) (8) For the definition and history of the writ of certiorari, see Fitz. N. B. 554. As the court c: Kings Bench has a general superintendence ●ver all other courts of criminal jusd:ction, (k) 2 Hawk. P. C. 287. 4 Burr. 749. so it may award a certiorari to remove proceed |