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had been found guilty by his country (1). His life is however ftill under the protection of the law, as hath formerly been obferved: fo that though antiently an outlawed felon was faid [320] to have caput lupinum, and might be knocked on the head like a wolf, by any one that should meet him ; because, having renounced all law, he was to be dealt with as in a fiate of nature, when every one that should find him might flay him yet now, to avoid fuch inhumanity, it is holden that no man is entitled to kill him wantonly or wilfully; but in so doing is guilty of murder, unless it happens in the endeavour to apprehend him. For any perfon may arreft an outlaw on a criminal profecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him to execution. But fuch outlawry may be frequently reverfed by writ of error; the proceedings therein being (as it is fit they fhould be) exceedingly nice and circumftantial; and, if any fingle minute point be omitted or mifconducted, the whole outlawry is illegal, and may be reverfed: upon which reverfal the party accufed is admitted to plead to, and defend himself against, the indi&ment.

THUS much for procefs to bring in the offender after indictment found: during which stage of the prosecution it is, that writs of certiorari facias are ufually 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 jurifdiction into the court of king's bench; which is the fovereign ordinary court of juftice in causes cri

d 2 Hal. P. C. 205.

e See pag. 178.

f Mirr. c. 4. §. 4. Co. Litt. 128.

g1 Hal. P. C. 497.
Bracton. fol. 125.

(1) In moft cafes now in which a perfon convicted by a verdict is deprived of clergy, a perfon outlawed will also be oufted of clergy, yet fome few inftances may perhaps ftill remain where a perfon outlawed will have clergy, though if he had been tried for the fame offence, he would have been capitally convicted. See Foster, 358. 2 Leach. Hawk. 491. 4 T. R. 543.

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minal. And this is frequently done for one of these four purpofes; either, I. To confider and determine the validity of appeals or indictments and the proceedings thereon; and to quash or confirm them as there is caufe; or, 2. Where it is furmised that a partial or insufficient trial will probably be had in the court below, the indictment is removed, in order to have the prifoner or defendant tried at the bar of the court of king's bench, or before the justices of nifi prius: or, 3. It is fo removed, in order to plead the king's pardon there: or, 4. To iffue process of outlawry against the offender, in those [321] counties or places where the process of the inferior judges will not reach him'. Such writ of certiorari, when iffued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, fuperfedes the jurisdiction of such inferior court, and makes all fubfequent 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 profecutor or the defendant: the former as a matter of right, the latter as a matter of discretion; and therefore it is feldom granted to remove indictments from the juftices of gaol delivery, or after iffue joined or confeffion of the fact in any of the courts below *.

AT this ftage of prosecution also it is, that indictments found by the grand jury against a peer must in confequence of a writ of certiorari be certified and tranfmitted into the court of parliament, or into that of the lord high steward of Great Britain; and that, in places of exclufive jurifdiction, 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,

2 Hal. P, C. 210.

2 Hawk. P. C. 287, 4 Burr. 749:

OF

CHAPTER THE TWENTY-FIFTH.

ARRAIGNMENT

INCIDENTS.

AND IT'S

WH

HEN 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 ftage of criminal profecution.

To arraign, is nothing else but to call the prifoner to the bar of the court, to anfwer the matter charged upon him in the indictment (1). The prifoner is to be called to the bar by his name; and it is laid down in our antient books", that though under an indictment of the highest nature, he must be brought to the bar without irons, or any manner of fhackles or bonds; unless there be evident danger of an escape, and then he may be fecured with irons. But yet in Layer's cafe, 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 (2).

с

a 2 Hal. P. C. 216. b Bract. 1. 3. de coron. c. 18. §3. Mirr. c. 5. feet. 1. §54. Flet. / 1. 6. 31. 1. Brit. f. 5. Staundf. P. C.

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78. 3 Inft. 34. Kel. 10. 2 Hal.
P. C. 219. 2 Hawk. P. C. 308.
c State Trials. VI. 230.

(1) This word in Latin (Lord Hale fays) is no other than ad rationem ponere, and in French ad reson, or abbreviated a refn. z H. P. C. 216.

(2) And it has fince been held that the court has no authority to order the irons to be taken off, the jury are charged to try him.

till the prifoner has pleaded, and Waite's Cafe. Leach, 34.

WHEN

Book IV. WHEN he is brought to the bar, he is called upon by name to hold up his hand: which though it may feem a trifling circumstance, yet is of this importance, that by the holding up of his hand conftat de perfona, and he owns himfelf to be of that name by which he is called ". However, it is not an indifpenfable ceremony; for, being calculated merely for the purpose of identifying the perfon, any other acknowlegement will anfwer the purpofe as well: therefore, if the prisoner obftinately and contemptuously refufes to hold up his hand, but confeffes he is the person named, it is fully fufficient.

THEN the indictment is to be read to him diftinctly 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 acceffory could not be arraigned till the principal was attainted; unlefs he chofe it, for he might waive the benefit of the law; and therefore, principal and acceffory might, and may ftill, be arraigned, and plead, and also be tried together. But otherwife, 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 acceffory in any of thefe cafes, could not be arraigned for non conftitit whether any felony was committed or no, till the principal was attainted; and it might fo happen that the acceffory should be convicted one day, and the principal acquitted the next, which would be abfurd. However, this abfurdity could only happen, where it was poffible, that a trial of the principal might be had, fubsequent to that of the acceffory: and therefore the law still continues that the acceffory fhall not be tried, fo long as the principal remains liable to be tried hereafter. But by ftatute.

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1 Ann. c. 9. 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 otherwife; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, fo as never to be convicted at all; in any of these cafes, in which no fubfequent trial can be had of the principal, the acceffory 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 acceffory, as well after as before the conviction of the principal, it feems to be the better opinion, and founded on the true fpirit of juftice', that the acceffory is at liberty (if he can) to controvert the guilt of his fuppofed principal, and to prove him innocent of the charge, as well in point of fact as in point of law.

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WHEN a criminal is arraigned, he either flands mute, or confeffes the fact; which circumstances we may call incidents to the arraignment: or else he pleads to the indictment, which is to be confidered as the next ftage of proceedings. But firft, let us obferve these incidents to the arraignment, of standing mute, or confeffion,

I. REGULARLY a prifoner is faid to ftand mute, when, being arraigned for treafon or felony, he either, I. Makes no aufwer at all: or, 2. Anfwers foreign to the purpose, or with fuch matter as is not allowable; and will not anfwer otherwife; or, 3. Upon having pleaded not guilty, refuses to put himself upon the country. If he fays nothing, the court ought ex officio to impanel a jury to inquire whether he ftands obftinately mute, or whether he be dumb ex vifitatione Dei. If the latter appears to be the cafe, the judges of the court (who are to be of counfel for the prisoner, and to fee that he hath law and juftice) fhall proceed to the trial, and examine all points as if he had pleaded not guilty". But whether judgment of death can be given against such a pri

f Fofter, 365, &c.
2 Hal. P. C. 316.

h2 Hawk. P. C. 327.

foner,

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