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 seems to be only declaratory of the old common law; for in the Gothic constitutions we find the fame "praefcriptio annalis, quae currit adverfus actorem, fi de homicida ei non conftat intra annum a caede "facta, nec quenquam interea arguat et accufet P."

THESE appeals may be brought, previous to any indictment ; 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 also understood to be acquitted of any crown profecution for the same offence: but, on the contrary, if he made his peace with the king, still he might be profecuted at the fuit 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, ftill he may, by virtue of statute 3 Hen. VII. c. 1. be profecuted by appeal for the fame 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 fuffered the judgment of the law, he cannot afterwards be appealed. For it is a maxim of law, that "nemo bis punitur pro eodem delicto."

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 fuit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit 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

P Stiernh. de jure Goth. 1. 3. c. 4.

a Ibid. 1. 1. c. 5.

T 2 Hawk. P. C. 392.

be

be paid as a fine for homicide, it could not be remitted by the king's authority. And the antient usage was, so late as Henry the fourth's time, that all the relations of the flain should drag the appellee to the place of execution: a custom, founded upon that favage spirit of family resentment, 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 frustrate an indictment, so the appellant by his release may discharge an appeal": "nam quilibet poteft renunciare juri, pro fe introducto.”

THESE are the several methods of prosecution 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 profecution; remarking by the way the most material variations that may arise, from the method of proceeding by either information or appeal.

• LL. Edm. §. 3.

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

☐ 1 Hal. P. C. 9.

CHAPTER THE TWENTY FOURTH.

OF PROCESS UPON AN INDICTMENT.

WE

E are next, in the fourth place, to enquire into the manner of iffuing process, after indictment found, to bring in the accused to answer it. We have hitherto fuppofed the offender to be in cuftody before the finding of the indictment; in which cafe he is immediately to be arraigned thereon. But if he hath fled, or fecretes himself, in capital cafes; or hath not, in smaller misdemefnors, been bound over to appear at the affises 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 must issue to bring him into court; for the indictment cannot be tried, unless he perfonally appears: according to the rules of equity in all, and the express provision of statute 28 Edw. III. c. 3. in capital, cases; that no man shall be put to death, without being brought to answer by due process of law.

THE proper procefs on an indictment for any petty misdemefnor, 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 dif trefs infinite fhall be iffued from time to time till he appears.. VOL. IV. But

Qq

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 affifes; and if he cannot be taken upon the first capias, a fecond, and a third shall iffue, called an alias, and a pluries capias. But, on indictments for treafon or felony, a capias is the first process: and, for treason or homicide, only one fhall be allowed to iffue3, 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 provisions of this statute being in most cases found impracticable". And fo, in the cafe of mifdemefnors, it is now the ufual 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 such case, after the several writs have iffued 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 furrender, at five county courts ; and if he be returned quinto 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; 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 indictments for misdemefnors, is the fame as for outlawries upon civil actions; (of which, and the previous process by writs of capias, exigi facias, and proclamation, we fpoke in the preceding book) 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 he had been found guilty by his country. His life is however ftill under the protection of

the law, as hath formerly been obferved: and though antiently an outlawed felon was faid 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 state of nature, when every one that should find him might flay him yet now, to avoid such inhumanity, it is holden that no man is intitled to kill him wantonly or wilfully; but in fo doing is guilty of murder, unless it happens in the endeavour to apprehend him". For any perfon 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 fuch outlawry may be frequently reversed by writ of error; the proceedings therein being (as it is fit they should be) exceedingly nice and circumftantial; and, if any fingle minute point be omitted or misconducted, the whole outlawry is illegal, and may be reversed: upon which reverfal the party accused is admitted to plead to, and defend himself against, the indictment.

THUS much for process to bring in the offender after indict--ment found; during which stage of the profecution 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 justice in causes criminal. And this is frequently done for one of these four purposes; either, 1. 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 infufficient 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 nifi prius: or, 3. It is fo removed, in order to plead the king's pardon or, 4. To iffue process of

• See pag. 178.

f Mirr. c. 4. §. 4. Co. Litt. 128.

there: