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at the next 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 (6). And so, in the case of misdemeanors, it is now the usual practice for any judge of the court of king's bench, upon certificate of an indictment found, io 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 indietments 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 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) (5). His life is however still under the [*320] 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 (S); 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 reversal the party accused is admitted to plead to, and defend himself against, the indictment. (a) See Appendix, o 1.

(e) See page 178. (b) 2 Hal. P. C. 195.

( Mirr. c. 4. Co. Litt. 128. (c) See Book III. pago 283, 284.

(g) I Hal. P. C. 497. (d) 2 Hal. P. C. 205.

(h) Bracton, fol. 125. (3) Now by the 48 Geo. III. c. 58. when any cept in cases of treason. (2 R. S. 745, Ø 20.) person is charged with an offence below the (5) In most cases now in which a person degree of felony, one of the judges may, on an convicted by a verdict is deprived of clergy, a affidavit thereof, or on the production of an in- person outlawed will also be ousted of clergy ; dictment, or an information filed, issue his war. yet some few instances may perhaps still rerant for apprehending and holding him to bail; main where a person outlawed will have cler. and if he neglects or refuses to become so gy, though if he had been tried for the same bound, he may be committed to gaol until he offence, he would not have been entitled to that conforms, or is discharged.

privilege. See Foster, 358. 2 Leach. Hawk (4) Outlawry is abolished in New York, ex. 481. AT R. 543.

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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 chereon ; 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. C. 210.

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

(6) As to this writ in general, see Fitz. K. so it may award a certiorari to remove proceed. B. 245. a ; Bac. Ab. Certiorari A.: Cor. Dig. ings from them, unless they are expressly exCertiorari, A. 1; Burn J. Certiorari ; Wil. empted from such superintendence by the sta. liams J. Certiorari; 1 Chit. C. L. 2 ed. 371 tules creating them. .2 Haw. P. C. 286; Rex to 402.

v. Young, 2 T. R. 173 ; Rex v. Jukes, 8 T.R. (7) In New-York, no certiorari lies to re- 542. But certiorari cannot be taken away by move an indictment from the general sessions any general, but only by express negative to the supreme court or oyer and terminer be- words. Rex v. Reeve, 1 W. Bl. 231 ; and a fore trial: nor does it lie to remove an indict. statute, taking away certiorari, does not take ment from the oyer and terminer to the supreme it from the crown, unless expressly mentioncourt before trial, unless allowed by a justice ed. Rex v. 2 Chit. R. 136; and see of the supreme court or a circuit judge. (2 R. Rex v. Tindal, 15 East, 339, n. Certiorari S. 732, Ø 81, &c.)

lies from the court of King's Bench to justices, (8) For the definition and history of the rit even in cases which they are empowered final. of certiorari, see Fitz. N. B. 554. As the court ly to hear and determine. 2 Haw. P. C. 286 ; of King's Bench has a general superintendence Rex v. Morely, 2 Burr. 1040; Hartley v. Hooke over all other courts of criminal jurisdiction, er, Cowp. 524.



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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 (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 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 pe son 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 abore 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

(a) 2 Hal. P. C. 216.

(6) Bract. l. 3, de coron. c. 18, 63. Mirr. c. 5, sect. 1, 654. Flet. I. 1, c. 31,01. Brit. c. 5. Staundr. P. C. 78. 3 Inst. 34. Kel. 10. 2 Hal. P. C. 219.

2 Hawk. P. C. 309.

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

(!) See further as to arraignment and its i Chit. C. L. 2 ed. 403 to 414. post, 351. incidents, 1 Chit. C. L. 414 to 431 ; Burn's J. (4) And it has since been held, that the Arraignment; Williams J. Arraignment. court has no authority to order the irons to be

(2) This word in Latin (lord Hale says) is taken off, till the prisoner has pleaded, and no other than ad rationem ponere, and in French, the jury are charged to try him. Waite's case, ad reson, or abbreviated a resn. 2 Hal. P. C. Leach, 34. 216.

(5) It is not usual to require a peer to hold (3) As to obtaining a copy of the indictment, up his hand. 2 Hale, 219. n. a. Hawk. b. 2. assigning counsel, appearing and defending by c. 28. s. 2. attorney, and defending in forma pauperis, see

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, besore 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 (S), 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 inute, 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 ( Foster, 365, &c.

(h) 2 Hawk. P. C. 327. (6) 2 Hal. P. C. 316.

(6) See also the 22 Geo. III. c. 58. 29 Geo. principal felon is not altainted, it is enacted, II. c. 30; and as to New-York, see 2 R. S. ihat accessaries may be prosecuted after the 727, 9 49: allowing any accessary to be tried, conviction of the principal selon, though the though the principal has been pardoned or principal felon be not attainted. See further otherwise discharged after conviction. as to arraignment, 1 Curw. Haw. P. C. 434;

(7) See the ñ G. IV.C. 64, by s. 9 of which, i Chit. Cr. L. 414. The statute mentioned in accessaries before the fact, whether in cases the text is repealed by the statute 7 Geo. IV. of selony at common law, or by virtue of any statute or statutes made or to be made, may (8) In New York, the defendant, when arbe tried as such, or as for substantive selonies, ruigned, is asked if he demands a trial, and if by any court having jurisdiction to try the he does not confess himself guilty, a plea of not principal selons, although the offences be com guilty is entered. (2 R. S. 730, 70.) Thus mitted on the seas or abroad; and, if the of- the law as to standing mute is abolished. sences be committed in different counties, may (9) By 7 and 8 G. IV. c. 28, s. 1, where the be tried in either.

prisoner pleads "not guilty," without more, By s. 10, accessaries after the fact


be he shall be put on his trial by jury; and by s. tried by any court having jurisdiction over the 2, if he refuses to plead, the court may order principal felons, as in the proceeding s.; and, a plea of “ Not Guilty" to be entered, and by s. 11, in order that all accessaries may be proceed as in other cases. But the latter is convicted and punished, in cases where the discretionary; and where there is any real

c. 64.


[*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 (?). 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).

(1) 2 Hal. P. C. 317.

(m) 2 Hal. P. C. 320.
(n) Ibid. 321. 2 Hawk. P. C. 332.

(k) 3 Inst. 178.
(1) I Hawk. P. C. 329. I Hal. P. C. 317.

doubt whether the refusal to plead arises from be detained until his majesty's pleasure should
obstinacy or inability, the court may, and be known.
will, impanel a jury to try that question. In As to the law of New York, see preceding
case of insanity, this is specially provided for note: no insane person can be tried, sentenc-
by the unrepealed statute of 39 and 40 G. II. ed, or punished. (2 R. S. 697, 0 1.).
c. 94, s. 1 of which enacts, that the jury, in (10) Aulus Gellius with more truth has made
case of any person charged with treason, &c., the same observation upon the cruel law of
proving upon the trial to be insane, shall de- the Twelve Tables, De inope debitore secando,
clare whether he was acquitted by them on Eo consilio tanta immanitas pænæ denunciata
account of insanity, and the court shall order est, ne ad eam unquam perveniretur ;" for he
him to be kept in custody till his majesty's adds, " dissectum esse antiquitus neminem equi.
pleasure be known, and his majesty may give dem neque legi neque audivi," lib. 20. c. I. But
an order for the safe custody of such insane with respect to the borrid judgment of the peine
person; and s. 2 enacts, that insane persons, forte et dure, the prosecutor and the court could
indicted for any offence, and found to be in- exercise no discretion, or shew no favour to a
sane by a jury, to be impanelled on their ar. prisoner who stood obstinately mute. And in
raignment, shall be ordered by the court to be ihe legal history of this country there are nu-
kept in custody till his majesty's pleasure be merous instances of persons, who have had
known. The latter section has been held to resolution and patience to undergo so terrible
extend to cases of misdemeanor.

Rex v.

a death in order to benefit their heirs by preLittle, R. and R. C. C. 430. In Rex v. Ro. venting a forfeiture of their estates, which berts, Car. Cr. L. 57, a prisoner would not would have been the consequence of a convicplead, and jury bei impanelled to try tion by a verdict. There is a memorable story of whether he stood mute by the visitation of an ancestor of an ancient family in the north of God, his counsel claimed a right to address England. In a fit of jealousy he killed his the jury, as this was an issue with the affirma- wife; and put to death' his children who were tive on the prisoner. Thus was allowed by at home, by throwing them from the battle. Park and Abbott, Js. The prisoner's counsel ments of his castle ; and proceeding with an addresssed the jury, and called witnesses to intent to destroy his only remaining child, an prove he was insane. The jury found that he infant nursed at a farm house at some distance, was so, and Park, J., directed ihat he should he was intercepted by a storm of thunder and

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