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institute this private procefs. 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 ancefter; which heirfhip was alfo confined, by an ordinance of king Henry the firft, to the four nearest degrees of blood. It is given to the wife, on account of the lofs of her husband: therefore, if the marries again, before or pending her appeal, it is loft and gone; or, if the marries after judgment, fhe fhall not demand execution. The heir, as was faid, muft alfo be heir male, and fuch a one as was the [315] next heir by the courfe of the common law, at the time of


the killing of the ancestor. But this rule has three exceptions: r. If the perfon killed leaves an innocent wife, fhe only, and not the heir, fhall have the appeal: 2. If there be no wife, and the heir be accufed of the murder, the perfon, who next to him would have been heir male, fhall bring the appeal: 3. If the wife kills her husband, the heir may appeal her of the death. And, by the ftatute 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 feems to be only declaratory of the old common law; for in the Gothic conftitutions we find the fame "praefcriptio annalis, quae currit adverfus actorem, fi de « homicidia ei non conftet intra annum a caede facta, nec quenquam interea arguat et accufet?


THESE appeals may be brought, previous to any indict-ment; and if the appellee be acquitted thereon, he cannot be afterwards indicted for the fame offence. In like manner as by the old Gothic conftitution, if any offender gained a verdict in his favour, when profecuted by the party injured, he was alfo understood to be acquitted of any crown profecution for the fame offence; but, on the contrary, if he

z Mirr. c 2. §. 7.

a Stierah. de jure Goth. l. 3. c. 4.

b Ibid. l. 1. c. 5.


315 made his peace with the king, ftill he might be prosecuted at the fuit of the party. And fo, with us, if a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, ftill he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year and day be paft, by virtue of the ftatute 3 Hen. VII. c. 1. in order to be forthcoming to answer any appeal for the fame felony, not having as yet been punished for it: though, if he hath been found guilty of manflaughter 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 ftatute was made, it was not ufual to indict a man for homicide within the time limited for appeals; which produced very great inconvenience, of which more hereafter.

If the appellee be acquitted, the appellor (by virtue of the [316] ftatute of Westm. 2. 13 Edw. I. c. 12.) fhall fuffer one year's imprisonment, and pay a fine to the king, besides re ftitution of damages to the party for the imprisonment and infamy which he has sustained: and, if the appellor be incapable to make reftitution, his abettors fhall do it for him, and also be liable to imprisonment. This provifion, as was foreseen by the author of Fleta, proved a great discouragement to appeals; fo that thenceforward they ceased to be in common use.

If the appellee be found guilty, he fhall fuffer the fame judgment, as if he had been convicted by indictment: but with this remarkable difference; that on an indictment, which is at the fuit of the king, the king may pardon and remit the execution; on an appeal, which is at the fuit of a private fubject, 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. In like manner as, while the weregild continued to be paid as a fine e 2 Hawk. P. C. 392.

c See pag. 335.
a 7. 1. c. 34. §. 48%

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for homicide, it could not be remitted by the king's authority. And the antient usage was, fo late as Henry the fourth's time, that all the relations of the flain should drag the appellee to the place of execution: a cuftom, founded upon that favage fpirit of family refentment, which prevailed univerfally 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 ftate ". 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 fruftrate an indictment, fo the appellant by his release may [317] discharge an appeal1; “nam quilibet poteft renunciare juri pro fe introducto (4).”

THESE are the feveral methods of profecution instituted by the laws of England for the punishment of offences; of which that by indictment is the most general. I fhall therefore confine my subsequent obfervations principally to this method of prosecution; remarking by the way the most material variations that may arife, from the method of proceeding by either information or appeal.

f LL. Edm. §. 3.

8 M. 11 Hen. IV. 12. 3 Inft. 131.

h Robertfon. Cha. V. i. 45.


1 Hal. P. C. 9.

(4) Some appeals of late years have been commenced, but not profecuted with effect. 5 Burr. 2643. They have probably been compromised, as the chief object of an appeal in all times was to compel the defendant to make a pecuniary compensation. For when the verdict in an appeal was given in favour of the appellant, he might infift upon what terms he pleased as the ransom of the defendant's life, or a commutation of the fentence. In an appeal, in which the defendant was found guilty of manslaughter, it was doubted whether the king could pardon the burning in the hand, and the defendant compounded with the appellant for 40 marks. 3 P. Wms. 453.




E are next, in the fourth place, to inquire into the manner of ifsuing process, after indictment found, to bring in the accused to answer it. We have hitherto fuppofed the offender to be in custody before the finding of the indictment; in which cafe he is immediately (or as foon as convenience permits) to be arraigned thereon. But if he hath fled, or secretes himself, in capital cafes; or hath not, in fmaller mifdemefnors, been bound over to appear at the aflifes or feffions, ftill an indictment may be preferred against him in his absence; fince, were he present, he could not be heard before the grand jury against it. And, if it be found, then process muft iffue to bring him into court; for the in dictment cannot be tried, unless he perfonally appears: according to the rules of equity in all cafes, and the express provision of statute 28 Edw. III. c. 3. in capital ones, that no man fhall be put to death, without being brought to anfwer by due procefs of law,

THE proper procefs on an indictment for any petty mifde. mefnor, or on a penal statute, is a writ of venire facias, which is in the nature of a fummons to cause the party to appear. And if by the return to fuch venire it appears, that the party hath lands in the county whereby he may be diftreined, then a difirefs infinite fhall be iffued from time to time till he ape

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pears. But if the sheriff returns that he hath no lands in his bailiwick, then (upon his non-appearance) a writ of capias fhall iffue, which commands the sheriff to take his body, and have him at the next affizes; and if he cannot be taken upon the first capias, a second, and a third shall issue, called an alias, and a pluries capias. But, on indictments for treason or felony, a capias is the firft procefs; and for treafon or homicide, only one fhall be allowed to iffue 2, or two in the case of other felonies, by ftatute 25 Edw. III. c. 14. though the ufage is to iffue only one in any felony; the provifions of this ftatute being in most cafes found impracticable '. And fo, in the case of misdemefnors, 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 abfconds, and it is thought proper to pursue him to an outlawry, then a, greater exactness is neceffary. For, in fuch cafe, after the feveral writs have iffued in a regular number, according tothe nature of the respective crimes, without any effect, the offender fhall be put in the exigent in order to his outlawry: that is, he fhall be exacted, proclaimed, or required to furrender, at five county courts; and if he be returned quinta exactus, and does not appear at the fifth exaction or requifition, then he is adjudged to be outlawed, or put out of the protection of the law; fo that he is incapable of taking the benefit of it in any respect, either by bringing actions or otherwife.

THE punishment, for outlawries upon indictments for mifdemefnors, is the fame as for outlawries upon civil actions; (of which, and the previous procefs 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 treafon or felony amounts to a conviction and attainder of the offence charged in the indictment, as much as if the offender

a See Append. §. I.

2 Hal. P. C. 195.

See Vol. III. p. 283, 4.


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