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seems that, when these offences by degrees grew no longer redeemable, the private process was still continued, in order to insure the infliction [*314] of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence.

But, though appeals were thus in the nature of prosecutions for some atrocious injury committed more immediately against an individal, yet it also was anciently permitted, that any subject might appeal another subject of high treason, either in the courts of common law, (w) or in parliament, 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 battle 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 against 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 relation, 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 [*315] heir by the course of the common law, at the time of the 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 "prescriptio annalis, quæ currit adversus actorem, si de homicida ei non constet intra annum a cæda facta, nec quenquam interea arguat et accuset.” (a)

These appeals may be brought previous to an indictment: and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. In like manner as by the old Gothic constitution, if any offender 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 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 afterwards 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)

(10) Britt. c. 22.

(x) By Donald lord Rea against David Ramser. Rushw. vol. 2. part 2, p. 112.) (y) 1 Hal. P. C. 849. (z) Mirr. c. 2. § 7. (a) Stiernh. de jure Goth. 1. 3, c. 4. (b) Stieruh. de jure Goth. l. 1, c. 5.

(c) See page 335.

*If the appellee be acquitted, the appellor (by virtue of the statute of [*316] 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 ines.pable 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 in an action of battery. (c) 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. (f) 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 spirit 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 indictment, so the appellant by his release may discharge an appeal; (i) "nam quilibet polest renunciare [*317] juri pro se introducto. (11)

These are the several modes of prosecution, instituted by the laws of 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.

(d) L. 1, c. 34, § 48.
(e) 2 Hawk. P. C. 392,
(g) M. Il Hen. IV, 12. 3 Inst. 131.

(f) LL. Edm. 1 3. (h) Robertson, Chas. V, i. 45.

(i) 1 Hal. P. C. 9.

(11) 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. Thorton had been tried at the Warwick summer assizes, 1817, for the murder, and acquitted, though under circumstances of strong suspicion. The appellee, when called upon to plead, pleaded not guilty, and that he was ready to defend himself by his body;" and, taking his glove of, 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 singular case, in the report of it, under the name of Ashford v. Thornton, 1 B. and A. 405. It 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 insuflicient. It was also held, that the appellee may reply fresh matter, tending to show 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 judgment that the appellee be allowed his wager of battle, or that he go without day. Therefore, the appellant praying no further judgment, the court, by consent of both parties, ordered that judgment should be stayed in the appeal, and that the appellee should be discharged. This case, the first of the kind that had occurred for more than half a century: see Bigby v. Kennedy, 5 Burt, 2643; 2 W. Bl. 713; Rex v. Taylor, 5 Burr, 2793; Smith v. Taylor, id.; 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 Geo. III, c. 46 ]




WE are next, in the fourth place, to inquire into the manner of issuing precess, 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 had fled, or secretes himself, in capital cases: or hath not, in smaller misdemeanors, been bound over to appear at the assizes 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, that no man shall be put to death, without being brought to answer by due process of law.

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 nonappearance) a writ of capias *shall issue, which commands the sheriff to take his body, and have him at the next assizes; and if he cannot be [*319] 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. (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. (1) 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.

The punishment for outlawries upon an 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 outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the (c) See book III, pp. 283, 284.

(a) See Appendix, § 1.

(b) 2 Hal. P. C. 195.

(1) [By the statute 11 and 12 Vic. c. 43, s. 3, when any indictment is found in any court of oyer and terminer, or gaol delivery, or in any court of general or quarter sessions, against any person at large, whether he has been previously bound to appear or not, the clerk of indictments, or clerk of the peace, as the case may be, may at any time issue a certificate of such indictment having been found; and, upon its production, a justice for the county or place where the offencə was committed, or where the defendant resides, may issue his warrant, and thereupon commit him for trial or admit him to bail.]

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 said to [*320] 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 ne 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. (1) 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 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.

Thus much for the process to bring in the offender after indictment found; during which stage of the prosecution it is that writs of certiorari facias 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; (2) 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 [ *321 ] outlawry against the offender, in those *counties or places where the process of the inferior judges will not reach him (i). Such a writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supercedes 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 (f) Mirr. c. 4. Co. Litt. 128. (i) 2 Hal. P. C. 210.

(d) 2 Hal. P. C. 205. (g) 1 Hal. P. C. 497.

(e) See page 178.
(h) Bracton, fol. 125.

(2) [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 juris diction, so it may award a certiorari to remove proceedings from them, unless they are expressly exempted from such superintendence by the statutes creating them. 2 Hawk. P. C. 288; Rex v. Young, 2 T. R. 473; Rex v. Jukes, id. 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; Rex v. Morely, 2 Burr. 1040: Hartley v. Hooker, Cowp. 524.]

Now, by statute 5 and 6 Wm. IV, c. 33, s. 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, s. 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 that some question of law of more than usual difliculty 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.

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.



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 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)

*When he is brought to the bar, he is called upon by name to hold [*323 ] 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) 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 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 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 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

(a) 2 Hal. P. C 216.

(k) 2 Hawk. P. C. 287. 2 Burr. 749. (b) Bract. 1. 3, de coron. c. 18, § 3. Mirr. c. 5, sect. 1, § 51. Flet. l. 1, c. 31, § 1. Brit c. 5. Staundf. P. C. 78. 3 Inst. 3. 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.

VOL. II.-63


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