Sivut kuvina
PDF
ePub

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 (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 (8); 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 or 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 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.

(i) 2 Hal. P. С. 210.

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

so it may award a certiorari to remove proceedings from them, unless they are expressly ex

(6) As to this writ in general, see Fitz. K. В. 245. a; Вас. Ab. Certiorari A. Com. Dig. Certiorari, A. 1; Burn J. Certiorari; Wil-empted from such superintendence by the sta

liams J. Certiorari; 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 of 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 of King's Bench has a general superintendence over all other courts of criminal jurisdiction,

tutes creating them. 2 Haw. P. C. 286; Rex v. Young, 2 T. R. 473; Rex v. Jukes, 8 T. R. 542. But certiorari cannot be taken away by any general, but only by express negative words. Rex v. Reeve, 1 W. Bl. 231; and a statute, taking away certiorari, does not take it from the crown, unless expressly mentioned. Rex v., 2 Chit. R. 136; and see Rex v. Tindal, 15 East, 339, n. Certiorari lies from the court of King's Bench to justices, even in cases which they are empowered finally to hear and determine. 2 Haw. P. C. 286; Řex v. Morely, 2 Burr. 1040; Hartley v. Hooker, Cowp. 524.

CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS (1).

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 (2), is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment (a) (3). The prisoner is to be called to the bar by his name; and it is laid down in our ancient books (6), 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 (c) (4).

[*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 accessary 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 accessary 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 above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a pardon, or had died before attainder, the accessary in any of these

[blocks in formation]

2 Hawk. P. C. 308.
(c) State Trials, VI. 230.
(d) 2 Hal. P. C. 219.
(e) Raym. 408.

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. s. 2.

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 accessary 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 accessary; and therefore the law still continues, that the accessary shall not be tried, so long as the principal remains liable to be tried hereafter. But by statute *1 Ann. c. 9. (6) if [*324] 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 accessary 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 accessary, 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 (f), that the accessary 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 (7).

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 (8). 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 (g). If he says nothing, the court ought ex officio to impanel 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 had pleaded not guilty (h) (9). But whether

(f) Foster, 365, &c. (g) 2 Hal. P. С. 316.

(6) See also the 22 Geo. III. c. 58. 29 Geo. II. c. 30; and as to New-York, see 2 R. S. 727, § 49: allowing any accessary to be tried, though the principal has been pardoned or otherwise discharged after conviction.

(7) See the 7 G. IV. c. 64, by s. 9 of which, accessaries before the fact, whether in cases of felony at common law, or by virtue of any statute or statutes made or to be made, may be tried as such, or as for substantive felonies, by any court having jurisdiction to try the principal felons, although the offences be com mitted on the seas or abroad; and, if the of fences be committed in different counties, may be tried in either.

By s. 10, accessaries after the fact may be tried by any court having jurisdiction over the principal felons, as in the proceedings.; and, by s. 11, in order that all accessaries may be convicted and punished, in cases where the

(h) 2 Hawk. P. C. 327.

principal felon is not attainted, it is enacted, that accessaries may be prosecuted after the conviction of the principal felon, though the principal felon be not attainted. See further as to arraignment, 1 Curw. Haw. P. C. 434; 1 Chit. Cr. L. 414. The statute mentioned in the text is repealed by the statute 7 Geo. IV. c. 64.

(8) In New-York, the defendant, when arraigned, is asked if he demands a trial, and if he does not confess himself guilty, a plea of not guilty is entered. (2 R. S. 730, § 70.) Thus the law as to standing mute is abolished.

(9) By 7 and 8 G. IV. c. 28, s. 1, where the prisoner pleads "not guilty," without more, he shall be put on his trial by jury; and by s. 2, if he refuses to plead, the court may order a plea of "Not Guilty" to be entered, and proceed as in other cases. But the latter is discretionary; and where there is any real

[*325] 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 (i).

If he be found to be obstinately mute (which a prisoner hath been held to be that hath cut out his own tongue) (k), 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 larceny, and in all misdemeanors, standing mute hath always been equivalent 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 (m); and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it (n). Thus tender was the law of inflicting this dreadful punishment; but if no other means could prevail, and the prisoner (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 (10).

[blocks in formation]

doubt whether the refusal to plead arises from obstinacy or inability, the court may, and will, impanel a jury to try that question. In case of insanity, this is specially provided for by the unrepealed statute of 39 and 40 G. III. c. 94, s. 1 of which enacts, that the jury, in case of any person charged with treason, &c., proving upon the trial to be insane, shall declare whether he was acquitted by them on account of insanity, and the court shall order him to be kept in custody till his majesty's pleasure be known, and his majesty may give an order for the safe custody of such insane person; and s. 2 enacts, that insane persons, indicted for any offence, and found to be insane by a jury, to be impanelled on their arraignment, shall be ordered by the court to be kept in custody till his majesty's pleasure be known. The latter section has been held to extend to cases of misdemeanor. Rex v. Little, R. and R. C. C. 430. In Rex v. Roberts, Car. Cr. L. 57, a prisoner would not plead, and a jury being impanelled to try whether he stood mute by the visitation of God, his counsel claimed a right to address the jury, as this was an issue with the affirmative on the prisoner. Thus was allowed by Park and Abbott, Js. The prisoner's counsel addresssed the jury, and called witnesses to prove he was insane. The jury found that he was so, and Park, J., directed that he should

(m) 2 Hal. P. С. 320.

(n) Ibid. 321. 2 Hawk. P. С. 332.

be detained until his majesty's pleasure should be known.

As to the law of New-York, see preceding note: no insane person can be tried, sentenced, or punished. (2R. S. 697, § 1.)

(10) Aulus Gellius with more truth has made the same observation upon the cruel law of the Twelve Tables, De inope debitore secando, "Eo consilio tanta immanitas pœnæ denunciata est, ne ad eam unquam perveniretur;" for he adds, "dissectum esse antiquitus neminem egradem neque legi neque audivi," lib. 20. c. L. Bat with respect to the horrid judgment of the peise forte et dure, the prosecutor and the court could exercise no discretion, or shew no favour to a prisoner who stood obstinately mute. And in the legal history of this country there are numerous instances of persons, who have bad resolution and patience to undergo so terrible a death in order to benefit their heirs by preventing a forfeiture of their estates, which would have been the consequence of a convietion by a verdict. There is a memorable story of an ancestor of an ancient family in the north of England. In a fit of jealousy he killed his wife; and put to death his children who were at home, by throwing them from the battlements of his castle; and proceeding with an intent to destroy his only remaining child, an infant nursed at a farm-house at some distance, he was intercepted by a storm of thunder and

The rack, or question, to extort a confession from criminals, is a practice of a different nature; this having been only used to com- [*326] pel a man to put himself upon his trial; that being a species of trial in itself. And the trial by rack is utterly unknown to the law of England; though once when the dukes of Exeter and Suffolk, and other ministers of Henry IV. 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 (0); where it was occasionally used as an engine of state, not of law, more than once in the reign of queen Elizabeth (p). 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 (q). 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 (r) : 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 (s), 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 [*327] furnish evidence: "tamen," says he, " illa tormenta gubernat dolor, moderatur natura cujusque tum animi tum corporis, regit quaesitor, flectit libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur (t)."

The English judgment of penance for standing (u) mute was as follows: that the prisoner be remanded to the prison from whence he came ; and put into a low, dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency forbids: that there be placed upon his body as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison-door; and in this situation this should be alternately his daily diet till he died, or (as anciently the judgment ran) till he answered (v).

It hath been doubted whether this punishment subsisted at the common

(0) 3 Inst. 35.

(p) Barr. 92. 496.

(q) Rushw. Coll. i. 638.

(7) Col. 1. 9, 1. 41, 1. 8, & t. 47, l. 16. Fortesq. de LL. Ang. c. 22.

(s) The marquis Beccaria (ch. 16.), in an exquisite piece of raillery, has proposed this problem, with a gravity and precision that are truly mathe

lightning. This awakened in his breast the compunctions of conscience. He desisted from his purpose, and having surrendered himself

matical; "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."

(1) Pro Sulla, 28.

(u) 2 Hal. P. C. 319. 2 Hawk. P. C. 329.
(v) Britton, c. 4, & 22. Flet. L. 1, 1. 34, § 33.

to justice, in order to secure his estates to this
child, he had the resolution to die under the
dreadful judgment of peine forte et dure.

« EdellinenJatka »