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 [*320] *observed: (e) so that though anciently an outlawed felon was said to 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 no 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. (h) 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. (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 jurisdiction, 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. 286; Rex v. Young, 2 T. R. 473; Rex v. Jukes, 8 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 Win. 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 imparti trial cannot be had in the court below, or that some question of law of more than usual difficulty 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. 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. (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 up his hand: which, though it may seem a trifling circumstance, yet is [*323] 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. el Giles (e) Raym. 408. 497 still continues that the accessory shall not be tried so long as the principal remains liable to be tried hereafter. (1) But by statute, *1 Ann. c. 9, if [*324] 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 otherwise; or if the principal stands mute, or challenges peremptorily above the legal number of jurors, so as never to be convicted at all; in any of these cases, in which no subsequent trial can be had of the principal, the accessory 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 accessory, as well after as before the conviction of the principal, it seems to be the better opinion, and founded on the true spirit of justice,(f) that the accessory is at liberty (if he can) to controvert the guilt of his supposed principal, and to prove him innocent of the charge, as well in point of fact as in point of law. When a criminal is arraigned, 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. 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. (g) If he says nothing, the court ought ex officio to empanel 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. () (2) But whether judgment of death can be given against such a *prisoner who hath never pleaded, and can say nothing in arrest of [*325] judgment, is a point yet undetermined. (i) (f) Foster, 365, &c. (g) 2 Hal. P. C. 316. (h) 2 Hawk. P. C. 327. (i) 2 Hal. P. C. 317. (1) Now, by 24 and 25 Vic. c. 94, s. 1, an accessory before the fact to any felony may be indicted, tried, convicted and punished in all respects as if he were the principal felon. By section 2, whosoever shall counsel, procure or command any other person to commit any felony shall be guilty of felony, and may be indicted and convicted, either as an accessory before the fact to the principal felony, together with the principal felon, or may be indicted and convicted of a substantive felony, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and may thereupon be punished in the same manner as an accessory before the fact to the same felony, if convicted as an accessory, may be punished. And by 24 and 25 Vic. c. 99, s. 3, the like provision is made for the case of accessories after the fact. (2) [By 7 and 8 Geo. IV, c. 28, s. 1, where a prisoner pleads "not guilty," without more, he shall be put on his trial by jury; and, by section 2, if he refuses to plead, the court may order a plea of not guilty" to be entered, and proceed as in other cases. But the latter is discretionary; and where there is any real doubt whether the refusal to plead arises from obstinacy or inability, the court may, and will, impanel a jury to try that question. In case of insanity this is specially provided for by the unrepealed statute of 39 and 40 Geo. III. c. 94, section 1 of which enacts that the jury, in case of any person charged with treason, &c., proving upon the trial to be insane, shall declare whether he was acquitted by them on account of insanity, and the court shall order him to be kept in custody till his majesty's pleasure be known, and his majesty may give an order for the safe custody of such insane person; and section 2 enacts that insane persons indicted for any offence, and found to be insane by a jury, to be impaneled on their arraignment, shall be ordered by the court to be kept in custody till his majesty's pleasure be known. The latter section has been held to extend to cases of misdemeanor. Rex v. Little, R. and R. C. C. 430. In Rex v. Roberts, Car. Cr. L. 57, a prisoner would not plead, and a jury being impaneled to try whether he stood mute by the visitation of God, his counsel claimed a right to address the jury, as this was an issue with the affirmatrial ye on the prisoner. This was allowed by Park and Abbot, JJ. The prisoner's counsel adculty assed the jury, and called witnesses to prove he was insane. The jury found that he was whereof and Park, J., directed that he should be detained until his majesty's pleasure should wn.] A S& tio. on of the san Reg. v. Pritchard, 7 C. and P. 303, 305, n. If he be found to be obstinately mute (which a prisoner hath been held to be that hath cut out his own tongue), (k) then, if it be on an indictment of high treason, it hath long been clearly settled, that standing mute is an equivalent to a conviction, and he shall receive the same judgment and execution. (1) 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 received the terrible sentence of penance, or peine (which, as will appear presently, was probably nothing more than a corrupted abbreviation of prisone) forte et dure. Before this was pronounced the prisoner had not only trina admonitio, but also a respite of a few hours, and the sentence was distinctly read to him, that he might know his danger; (m) and, after all, if he continued obstinate, and his offence was clergyable, he had the benefit of his clergy allowed him, even though he was too stubborn to pray it. (n) Thus tender was the law of inflicting this dreadful punishment; but if no other means could prevail, and the prisoner (when charged with a capital felony) continued stubbornly mute, the judgment was then given against him without any distinction of sex or degree. A judg ment, which was purposly ordained to be exquisitely severe, that by that very means it might rarely be put in execution. (3) The rack, or question, to extort a confession from criminals, is a practice of a different nature; this having been only *used to compel a man to put himself upon his trial; that being a species of trial in itself. And the [*326 ] trial by rack is utterly unknown to the law of England; though once when the dukes of Exeter and Suffolk, and other ministers of Henry VI, had laid a design to introduce the civil law into this kingdom as the rule of government, for a beginning thereof they erected a rack for torture; which was called in derision the duke of Exeter's daughter, and still remains in the tower of London; (0) where it was occasionally used as an engine of state, not of law, more than once in the reign of Queen Elizabeth. (p) But, when upon the assassination of Villiers, duke of Buckingham, by Felton, it was proposed in the privy council to put the assassin to the rack, in order to discover his accomplices; the judges being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England. (2) It seems astonishing that this usage of administering the torture should be said to arise from a tenderness to the lives of men: and yet this is the reason given for its introduction in the civil law, and its subsequent adoption by the French and other foreign nations, (7) viz.: because the laws can (k) 3 Inst. 178. (m) 2 Hal. P. C. 320. (3) [Aulus Gellius, with, more truth, has made the same observation upon the cruel law of the Twelve Tables, De inope debitore secando, “Eo consilo tanta immanitas pæna denunciata est, ne ad eam unquam perveniretur;" for he adds, "dissectum esse antiquitus neminem equidem neque legi neque audivi," lib. 20, c. 1. But with respect to the horrid judgment of the peine forte et dure, the prosecutor and the court could exercise no discretion, or show no favor to a prisoner who stood obstinately mute. And in the legal history of this country there are Bumerous instances of persons, who have had resolution and patience to undergo so terrible a death in order to benefit their heirs by preventing a forfeiture of their estates, which would have been the consequence of a conviction by a verdict.] In Many cases are on record in which this punishment was inflicted. See Case of Juliana Quicke, Cro. Car. 118; Case of John Fussell, whose tortures are said to have been shortened by compassionate by-standers casting stones upon him, Barrington's Statutes, 85, note. Kelynge's Rep., p. 27, it is said to have been the constant practice at Newgate, in the time of Charles II, to tie the two thumbs together with whipcord in order that the pain might compel the party to plead. The only American case on record in which this punishment was inflicted was that of Giles Corey. 3 Bancroft's U. S. 93; 2 Hildreth's U. S. 160. not endure that any man should die upon the evidence of a false or even a single witness; and, therefore, contrived this method that innocence should manifest itself by a stout denial, or guilt by a plain confession. Thus rating a man's virtue by the hardiness of his constitution, and his guilt by the sensibility of his nerves!-But there needs only to state accurately, (s) in order most effectually to expose this inhuman species of mercy, the uncertainty of which, as a test and criterion of truth, was long ago very elegantly pointed out by [*327] Tully; though he lived in a state wherein it was usual to torture slaves in order to furnish evidence; "tamen," says he, " illa tormenta gubernat dolor moderatur natura cujusque tum animi tum corporis, regit quæsitor, flectit, libido, corrumpit spes, infirmat metus, ut in tot rerum angustiis nihil veritati loci relinquatur." (t) The English judgment of penance for standing (u) mute was as follows: that the prisoner be remanded to the prison from whence he came; and put into a low, dark chamber; and there be laid on his back, on the bare floor, naked, unless where decency.forbids: that there be placed upon his body as great a weight of iron as he could bear, and more; that he have no sustenance, save only, on the first day, three morsels of the worst bread; and, on the second day, three draughts of standing water, that should be nearest to the prison door; and in this situation this should be alternately his daily diet till he died, or (as anciently the judgment ran) till he answered. (v) It hath been doubted whether this punishment subsisted at the common law, (w) or was introduced in consequence of the statute Westm. 1, 3 Edw. I, c. 12, (x) which seems to be the better opinion. For not a word of it is mentioned in Glanvil or Bracton, or in any ancient author, case, or record (that hath yet been produced), previous to the reign of Edward I; but there are instances on record in the reign of Henry III, (y) where persons accused of felony, and standing mute were tried in a particular manner by two successive juries, and convicted; and it is asserted by the judges in 8 Hen. IV, that, by the common law before the statute, standing mute on an appeal amounted to a conviction of the felony.(z) This statute of Edward I directs such persons *as will not put themselves upon [*328] inquests of felonies before the judges at the suit of the king, to be put into hard and strong prison (soient mys en la prisone fort et dure) as those which refuse to be at the common law of the land." And immediately after this statute, the form of the judgment appears in Fleta and Britton to have been only a very strait confinement in prison, with hardly any degree of sustenance; but no weight is directed to be laid upon the body, so as to hasten the death of the miserable sufferer: and indeed any surcharge of punishment on persons adjudged to penance, so as to shorten their lives, is reckoned by Horne in the Mirror (a) as a species of criminal homicide. It also clearly appears, by a record of 31 Edw. III, (b) that the prisoner might then possibly subsist for forty days under this lingering punishment. I should, therefore, imagine that the practice of loading him with weights, or, as it was usually called, pressing him to death, was gradually introduced between 31 Edw. III, and 8 Hen. IV, at which last period it first appears upon our books; (c) being intended as a species of mercy to the delinquent, by delivering him the sooner from his torment: and hence I presume it also was, that the duration of the penance was then first (d) altered; and instead of continuing till he answered, it was directed to continue till he died, which must very soon happen under an enormous pressure. The uncertainty of its original, the doubts that were conceived of its legality, (8) The marquis Beccaria (ch. 16), in an exquisite piece of raillery, has proposed this problem, with a gravity and precision that are truly mathematical: The force of the muscles and the sensibility of the nerves of an innocent person being given, it is required to find the degree of pain necessary to make him confess himself guilty of a given crime." (t) Pro Sulla, 28. (v) Britton, c. 4. & 22. (u) 2 Hal. P. C. 319. 2 Hawk. P. C. 329. Flet. l. 1, t. 34, § 33. (w) 2 Inst. 179. 2 Hal. P. C. 322. (x) Staundf. P. C. 149. Barr. 82. (y) Emlyn on 2 Hal P. C. 322. 2 Hawk. P. C. 330. (z) Al common ley, avant le statute de West. 1, c. 12, si, ascum ust estre appeal, et ust estre mute, ill serra convict de felony. M. 8 Hen. IV. 2.) (a) Ch. 1, § 9. (b) 6 Rym. 13. (c) Yearb. 8 Hen. IV, 1. (d) Et fuit dit, que le contraire avait estre fait devant ces heurs. (Ibid. 2.) |
