CHAPTER THE TWENTY FOURTH.
OF PROCESS UPON AN INDICTMENT.

WE are next, in the fourth place, to enquire into the manner of iffuing procefs, after indictment found, to bring in the accufed to anfwer 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 himfelf, in capital cafes ; or hath not, in fmaller mifdemefnors, been bound over to appear at the affifes or feffions, ftill an indictment may be preferred againft him in his abfence ; fince, were he prefent, he could not be heard before the grand jury againft it. And, if it be found, then procefs muft iffue to bring him into court ; for the indictment cannot be tried, unlefs he perfonally appears : according to the rules of equity in all, and the exprefs provifion of ftatute 28 Edw. III. c. 3. in capital, cafes ; that no man fhall be put to death, without being brought to anfwer by due procefs of law.

THE proper procefs on an indictment for any petty mifdemefnor, or on a penal ftatute, is a writ of venire facias, which is in the nature of a fummons to caufe 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 diftrefs infinite fhall be iffued from time to time till he appears.
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But if the fheriff returns that he hath no lands in his bailiwick, then (upon his non-appearance) a writ of capias fhall iffue, which commands the fheriff to take his body, and have him at the next affifes ; and if he cannot be taken upon the firft capias, a fecond, and a third fhall iffue, called an alias, and a pluries capias. But, on indictments for treafon or felony, a capias is the firft procefs : and, for treafon or homicide, only one fhall be allowed to iffue ^a, or two in the cafe of other felonies, by ftatute 25 Edw. III. c. 14. though the ufage is to iffue only one in any felony ; the provifions of this ftatute being in moft cafes found impracticable ^b. 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 purfue him to an outlawry, then a greater exactnefs is neceffary. For, in fuch cafe, after the feveral writs have iffued in a regular number, according to the nature of the refpective crimes, without any effect, the offender fhall be put in the exigent in order to his outlawry : that is, he fhall 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 ; fo that he is incapable of taking the benefit of it in any refpect, either by bringing actions or otherwife.

THE punifhment for outlawries upon indictments for mifdemefnors, is the fame as for outlawries upon civil actions ; (of which, and the previous procefs by writs of capias, exigi facias, and proclamation, we fpoke in the preceding book ^c) viz. forfeiture of goods and chattels. But an outlawry in treafon 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 ^d. His life is however ftill under the protection of

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^a See appendix. §. 1.
^b 2 Hal. P. C. 195.
^c See Vol. III. pag. 283, 4.
^d 2 Hal. P. C. 205.
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the law, as hath formerly been obferved ^e : 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 fhould meet him ^f ; becaufe, having renounced all law, he was to be dealt with as in a ftate of nature, when every one that fhould find him might flay him : yet now, to avoid fuch inhumanity, it is holden that no man is intitled to kill him wantonly or wilfully ; but in fo doing is guilty of murder ^g, unlefs it happens in the endeavour to apprehend him ^h. 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 himfelf againft, the indictment.

THUS much for procefs to bring in the offender after indictment found ; during which ftage 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 juftice in caufes criminal. And this is frequently done for one of thefe four purpofes ; either, 1. To confider and determine the validity of appeals or indictments and the proceedings thereon : and to quafh or confirm them as there is caufe : or, 2. Where it is furmifed that a partial or infufficient 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 juftices of nifi prius : or, 3. It is fo removed, in order to plead the king's pardon there : or, 4. To iffue procefs of

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^e See pag. 178.
^f Mirr. c. 4. §. 4. Co. Litt. 128.
^g 1 Hal. P. C. 49^-.
^h Bracton. fol. 1256.
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outlawry againft the offender, in thofe countries or places where the procefs of the inferior judges will not reach him ⁱ. Such writ of certiorari, when iffued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwife, fuperfedes the jurifdiction of fuch inferior court, and makes all fubfequent proceedings therein entirely erroneous and illegal ; unlefs 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 inftance of either the profecutor or the defendant : the former as a matter
of right, the latter as a matter of difcretion ; 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 ^k.

AT this ftage of profecution alfo it is, that indictments found by the grand jury againft a peer muft in confequence of a writ of certiorari be certified and tranfmitted into the court of parliament, or into that of the lord high fteward of Great Britain ; and that, in places of exclufive jurifdiction, as the two univerfities, indictments muft be delivered (upon challenge and claim of cognizance) to the courts therein eftablifhed by charter, and confirmed by act of parliament, to be there refpectively tried and determined.

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^l 2 Hal. P. C. 210.
^k 2 Hawk. P. C. 287. 4 Burr. 749.
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