[whom, according to Tacitus, "luitur homicidium certo armentorum ac pecorum numero; recipitque satisfactionem universa domus" (r).] Appeals were allowed in murder, larceny, rape, arson and mayhem (s).

They were not however confined to these cases of private injury, [for it was also antiently permitted to any subject to appeal another subject of high treason, either in the courts of common law or in parliament: or, (for treasons committed beyond the seas,) in the court of the high constable and marshal (t).] But these appeals for treason were, in the opinion of Sir M. Hale, taken away by 5 Edward III. c. 9 ; 25 Edward III. c. 4; and 1 Henry IV. c. 14 (u). And though the remaining appeals continued in force till our own day, yet now, by 59 Geo. III. c. 46, it is enacted, that it shall thenceforth not be lawful for any person to sue an appeal for treason, murder, felony, or other offence; any law or usage to the contrary notwithstanding (x).

An indictment and an information, therefore, are the only methods now extant in the laws of England, for the prosecution of offences (y); of which that by indictment is the most general. [We shall therefore confine our subsequent observations principally to this method; but with some reference, also, as occasion may arise, to the course of proceeding by information.]

(r) De Mor. Germ. c. 21. And in another place, c. 12: "Delictis, pro modo pœnarum, equorum pecorumque numero convicti mulctantur. Pars mulctæ regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus, exsolvitur." In the same manner, by the Irish Brehon Law, a composition by pecuniary recompence might be made between a murderer and the friends of the deceased. Spenser, St. of Ireland, p. 1513 (edit. Hughes.)

(s) 4 Bl. Com. p. 314. Of the appeal in case of murder, we may remark, that it might be brought either by the wife for the death of her husband; or by the heir male within four degrees of blood, for the

death of his ancestor. (Ibid.)

(t) We are informed by Blackstone (vol. iv. p. 314), that as late as the year 1631 there was a trial by battel awarded in the court of chivalry, on an appeal of treason beyond the seas. This was the case of Donald Lord Rea v. David Ramsey (Rushw. vol. ii. part ii. p. 112). (u) 1 Hale, P. C. 349.

(a) See Abraham Thornton's case, 1 B. & Ald. 405.

(y)" Prosecution" is here to be understood in the sense which we have latterly had in view (vide sup. pp. 424, 438), and which does not include impeachments (sup. p. 379), or summary convictions (sup. p. 409).

CHAPTER XIX.

OF PROCESS: AND HEREIN, of cERTIORARI.

[WE are next in the fourth place to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it (a). We have hitherto supposed the offender to be in custody,] or else held to bail, [before the finding of the indictment; in which cases, he is immediately after the finding, or as soon as convenience permits, to be arraigned thereon. But if he has fled or secretes himself,] so as to avoid the operation of the warrant; or if no warrant has ever been issued for his arrest, or at least no commitment to take his trial has taken place:-[still an indictment may be preferred against him in his absence: since, 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,] to appear, or be arraigned. [For the indictment cannot be tried unless he appears;] according to the rule of justice in all cases, [and the express provision of statute 28 Edw. III. c. 3, in capital ones, that no man shall be put to death without being brought to answer by due process of law.]

In general, the process on an indictment is by writ of capias, where the person charged is not in custody, and in cases not otherwise provided for by statute (b). In misdemeanors it is, also, the practice upon an indictment found during the assizes or sessions, to issue a bench warrant, signed by a judge or two justices of the peace, to appre

(a) Vide sup. p. 424. As to the term process, vide sup. vol. III. p.

583.

(b) 25 Edw. 3, c. 14; 2 Hale, P. C. 195; R. v. Yandell, 4 T. R. 521; 1 Chit. Cr. 339.

VOL. IV.

H H

hend the defendant (c). And whenever any person is charged with any offence, (not being treason or felony,) for which he may be prosecuted by indictment, or information, in the Court of Queen's Bench;-and it shall be made to appear to any judge of that court, by affidavit or by certificate, that an indictment has been found, or information filed, in such court, against the party, for such offence;-it is made lawful by 48 Geo. III. c. 58, s. 1, for such judge to issue his warrant to bring the party before him, in order to his being bound, with sufficient sureties, to appear and answer the indictment or information (d). But process on any indictment found, may now, under the provisions of a later statute, be by warrant from justices of the peace, instead of suing out a capias, or bench warrant, or proceeding under the provisions of the Act of Geo. III. For by 11 & 12 Vict. c. 42, s. 3, it is enacted, that where an indictment shall have been found for any indictable offence, in any court of oyer and terminer, or general gaol delivery, or general or quarter sessions of the peace, against any person then at large,—a certificate shall be granted by the proper officer to the prosecutor, of such indictment having been found; and upon production of such certificate to any justice, or justices, of the peace for the place where the offence is alleged in the indictment to have been committed, or in which the person indicted is or is suspected to be, such justice or justices shall issue a warrant to apprehend such person and cause him to be brought up to be dealt with according to law: and, upon its being proved that he is the same person as named in the indictment, shall, without further inquiry, commit him for trial, or admit him to bail. Or if the person against whom the indictment is found, shall be confined in any gaol or prison for any other offence, then, upon its being proved that he is the same person as named in the indictment, such justice or justices shall issue their warrant to the gaoler, command(c) 1 Chit. Cr. L. 339. (d) 48 Geo. 3, c. 58, s. 1.

ing him to detain such prisoner in custody, until by writ of habeas corpus he shall be removed therefrom, for the purpose of being tried upon the indictment, or until he shall be otherwise discharged by due course of law (e).

Supposing, however, the defendant not to be found, so that his apprehension cannot be effected by any of the above means, he is then liable, on his non-appearance to the indictment, to be outlawed (f). The first process for this purpose, in case of misdemeanor, is by [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 has no lands in his bailiwick, then upon his non-appearance, a writ of capias shall issue; and if he cannot be taken upon the first, a second and a third shall issue, called an alias and a pluries capias.] But on indictments for treason and felony, the course is more summary, and a capias is the first process. [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 a writ of proclamation shall also be issued (g): [and if he be returned quinto exactus, and does not appear at the fifth exaction or requisition, then he is

a corporation, or a parish, or a hundred; nor against a peer, except for treason, felony, or breach of the peace; nor against an infant under fourteen. (1 Chit. Cr. L. 348.) In case of outlawry of a woman, she is said to be waived.

(e) In the particular case of a prisoner, ordered by the Queen's Bench to be tried at the Central Criminal Court, under the provisions of 19 & 20 Vict. c. 16, the gaoler is, by sect. 5 of that Act, to cause the prisoner, with his commitment and detainer, to be removed to Newgate without habeas corpus or other writ. (f) Outlawry does not lie against s. 4.

(g) 4 & 5 W. & M. c. 22, made perpetual by 7 & 8 Will. 3, c. 36,

[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,] and his property is forfeited to the Crown (h). [An outlawry for treason or felony, amounts to a conviction and attainder of the offence, as much as if the offender had been found guilty by his country (i). His life is, however, still under the protection of the law, so that though antiently 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 (k);-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 (1), unless it happens in the endeavour to apprehend him (m): 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 in to be dealt with according to law. But an outlawry may be frequently reversed by plea, or by proceedings in error, according to the nature of the case (n). In the case of felony, however, the defendant must for this purpose render himself into custody (o); and may then take any technical objection to the regularity of the process; which, if allowed, will have the effect of reversing the outlawry, and enable the party accused to plead and defend himself against the indictment (p). In one instance, indeed, though the outlawry be regular, its consequences may be avoided: for by 5 & 6 Edw. VI. c. 11, (which

(h) A defendant in a civil action is also liable, after judgment, to be outlawed, supposing him to abscond leaving the judgment debt unpaid; [vide sup. vol. 1. p. 589, n. (s).] (i) 2 Hale, P. C. 205.

(k) Mirr. c. 4, s. 4; Co. Litt. 128. (1) 1 Hale, P. C. 497.

(m) Bracton, 1. 3, tr. 3, c. 11.

(n) In a modern case, outlawry on error was reversed, after the lapse of 116 years, for want of due proclamations having been made. (Tynte v. Reginam, 7 Q. B. 216.)

(0) Solomon v. Graham, 5 Ell. & Bl. 320.

(p) Chit. Cr. L. 368, 369; 4 Bl. Com. 320.