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, st. 5, 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 the usual practice for any judge of the court of king's bench, upon certificate 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 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 (required the fifth time), 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.

Outlawry.-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 (that you cause to be required), 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) His life is, however, still under the protection of the law, as hath formerly been *observed: (e) so that though anciently an outlawed felon was [*320] said to have caput lupinum (a wolf's head), 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 (that you take the outlaw), 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.

(a) See Appendix, § 1.
(d) 2 Hal. P. C 205.
(g) 1 Hal. P. C. 497.

(b) 2 Hal. P. C. 195.
(e) See page 178.
(h) Bracton, fol. 125.

1 This is altered by statute 11 and 12 Vic., c. 43, which provides for the issue by justices of a capias in such cases, upon certificate presented to them of

(c) See book III, pp. 283, 284. (f) Mirr. c. 4. Co. Litt. 128.

indictment found. In the United States a capias is the first writ issued to bring the offender before the magistrate.

Certiorari to test the record. 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 (cause to be certified) 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, 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 [*321] of the inferior judges will not reach him. (4) 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)

In cases against peers.- 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

(i) 2 Hal. P. C. 210. 1Now, by statute 5 and 6 Wm. IV, c. 33, § 1, no certiorari issues from the queen's bench, except at the instance of the attorney general, unless on leave obtained from the court, or a judge at chambers. And by statute 16 and 17 Vic., c. 30, 4, no indictment, except indictments against bodies corporate not authorized to appear by attorney in the courts in which the same are found, can be removed into the queen's bench or the central criminal court, by certiorari, at the instance of the prosecutor or defendant (other than the attorney general acting on behalf of the crown), unless it be made to appear to the court that a fair and impartial trial cannot be had in the court below, or

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

that some question of law of more than usual difficulty and importance is likely to arise upon the trial, or that a view of the premises in respect whereof any indictment is preferred, or a special jury, may be required for the satisfactory trial of the same.

In some of the American states a certiorari lies to some inferior court to remove a pending cause before trial. In some cases this is a statutory privi ledge. See Kendrick v. State, Cooke (Tenn.), 474; State v. Studer, 8 Ired. 487; Nicholls v. State, 5 N. J. 539; State v. Jones, 11 N. J. 289; State v. Canal Co., 13 N. J. 192; People v. Runkel, 6 Johns. 334; People v. Rulloff, 3 Park. Cr. R. 401.

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.

*CHAPTER XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

[*322]

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.

The arraignment.- To arraign 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) 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)

Identifying the prisoner.-*When he is brought to the [*323] 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 (there is evidence of the person), 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)

Reading the indictment.- 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.

Accessories. 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, had stood mute, had challenged above thirty-five jurors peremptorily, had claimed the benefit of clergy, had obtained a

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

(b) Bract. 1. 3, de coron. c. 18, § 3. Mirr. c. 5, sect. 1, § 54. Flet. l. 1, c. 31, § 1. Brit. c. 5. Staundf. P. C. 78. 3 Inst. 34. Kel. 10. 2 Hal. P. C. 219. 2 Hawk. P. C. 308. (c) State Trials, VI, 230. (d) 2 Hal. P. C. 219.

(e) Raym. 408.

pardon, or had died before attainder, the accessory in any of these cases could not be arraigned: for non constitit (it was not evident) whether any felony was committed or no, till the principal was attainted; and it might so happen 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, [*324] 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, (f) 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.

Pleading to the indictment.-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. (g) If he says nothing, the court ought ex officio to empannel a jury to inquire whether he stands obstinately mute, or whether he be dumb ex visitatione Dei (by the visitation of God). 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) 2

1 Now, by 24 and 25 Vic., c. 94, § 1, an accessory before the fact to any felony may be indicted, tried, convicted and punished in all respects as if he were the principal felon. By section 2, whosoever shall counsel, procure or command any other person to commit any felony shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or may be indicted and convicted of a substantive felony,

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

whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as an accessory before the fact to the same felony, if convicted as an accessory, may be punished. And by 24 and 25 Vic., c. 99, § 3, the like provision is made for the case of accessories after the fact.

2 By 7 and 8 Geo. IV, c. 28, § 2, it is provided that if the prisoner stands

But whether judgment of death can be given against such a *prisoner who hath never pleaded, and can say nothing in [*325] arrest of judgment, is a point yet undetermined. (¿) 1

Penalty for obstinately standing mute.-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. (7) 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 and 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 (strong and hard).

Before this was pronounced the prisoner had not only trina admonitio (a third warning), 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."

Torture. The rack, or question, to extort a confession from criminals, is a practice of a different nature; this having been only

(i) 2 Hal. P. C. 317. (m) 2 Hal. P. C. 320.

(k) 3 Inst. 178.

(7) 1 Hawk. P. C. 329. 2 Hal. P. C. 317. (n) Ibid. 321. 2 Hawk. P. C. 332.

mute of malice, or does not answer directly to the charge, this may be entered as a plea of not guilty. R. v. Bernard, 1 F. & F. 240. It is proper for a jury to determine whether or not the silence is malicious. R. v. Israel, 2 Cox Cr. C. 263. Where a deaf and dumb person was silent at her arraignment, it was left to a jury to say whether the silence was from malice or by visitation of God. They found that it was the latter. They were then sworn to determine whether the prisoner was able to plead, and they found that she was; then to determine whether she was sane enough to war rant a trial, and they found she was not. The prisoner was then by order of the court detained during her majesty's pleasure, under the provisions of 39 and 40 Geo. III, c. 64, § 2, as to the detention of persons found insane by a Jury upon arraignment.

(93)

1[Standing mute in American law is never treated as a confession. Re Smith, 13 Fed. Rep. 25.]

2 Many cases are on record in which this punishment was inflicted. See Case of Juliana Quicke, Cro. Car. 118: Case of John Fussell, whose tortures are said to have been shortened by compassionate bystanders casting stones upon him. Barrington's Statutes, 85, note. In Kelynge's Rep., p. 27, it is said to have been the constant practice at Newgate, in the time of Charles II, to tie the two thumbs together with whipcord in order that the pain might compel the party to plead.

1473

The only American case on record in which this punishment was inflicted was that of Giles Corey. 3 Bancroft's U. S. 93: 2 Hildreth's U. S. 160: 2 Upham's History of Salem Witchcraft, 334-343.