sent, 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.

The proper process on an indictment for any petty 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 non-appearance) 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 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 first process: 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 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.

The punishment, for outlawries upon indictments for misdemeanors, is the same as for outlawries upon civil actions; 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. His life is however still under the protection of the law: and, 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 person may arrest an outlaw on a criminal prosecution, either of his own head, or by writ or warrant of capias ullagatum, in order to bring him to execution. But such outlawry may be frequently reversed by writ of error, the proceedings therein being 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.

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; 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 of the inferior judge will not reach him. A certiorari may be granted at the instance of either the prosecutor or 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.

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 exciusive jurisdiction, as the two universities, indictments must be delivered 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.

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. He must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape. He is called upon by name to hold up his hand, and owns himself to be of that name by which he is called. However, it is not an indispensable ceremony; for, if the prisoner obstinately and contemptuously refuses to hold up his hand, but confesses he is the person named, it is fully sufficient. Then the indictment is to be read to him distinctly in the English tongue: after which it is to be demanded of him, whether he be guilty of the crime whereof he stands indicted, or not guilty? 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.

LL

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. 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? 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. But whether judgment of death can be given against such a prisoner, who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined.

If he be found to be obstinately mute, (which a prisoner hath been held to be, that hath cut out his own tongue,) then, if it be on an indictment of high treason, it hath long been clearly settled that standing mute is equivalent to a conviction, and he shall receive the same judgment and execution. 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 or 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