if he has no lands, then a writ of capias issues; and, if need be, a second and third, called an alias and a pluries capias.

After the several writs of venire facias, distringas, and capias have issued 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; 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 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, as if the offender had been found guilty. But such outlawry may be 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 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, unless taken away by statute, to certify and remove the indictment, with all the proceedings thereon, from any inferior court of criminal jurisdiction into the court of Queen's Bench; which is the sovereign ordinary court of justice in causes criminal. And this is frequently done; either, 1. To determine the validity of the indictment; and to quash or confirm it as there is cause: or, 2. Where it is surmised that a partial or insufficient trial will be had in the court below; or, 3. In order to plead the royal pardon in the Queen's Bench: or, 4. To outlaw the offender in those counties or places where the process of the inferior court will not reach him. Such writ of certiorari, when issued, supersedes the jurisdiction of the inferior court, and makes all subsequent proceedings therein entirely erroneous and illegal; unless the court of Queen's Bench remands the record to the court below, to bę there tried and determined.

At this stage of prosecution also it is that indictments found by the grand jury against a peer must be certified and transmitted into the court of parliament, or into that of the lord high steward; and

* In Tynte v. Reginam, 7 Q. B. 216, a judgment of outlawry, pronounced in 1729, was reversed after the lapse of 116 years.

that, in places of exclusive jurisdiction, as the two universities, indictments must be delivered, upon claim of cognizance, to the courts therein established, to be there respectively tried and determined.

CHAPTER XXV.

OF ARRAIGNMENT, AND ITS INCIDENTS.

Arraignment-Its incidents-Standing mute-Peine forte et dure—The Rack-Entering plea of "not guilty"-Confession.

WHEN the offender either appears voluntarily to an indictment, or is brought in to answer it in the proper court, he is immediately to be arraigned thereon; which is nothing else but to call the prisoner to the bar of the court, to answer the matter charged upon him in the indictment. When he is brought to the bar, 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.

When thus 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 the 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.

If he says nothing, the court ought ex officio to impanel 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 has law and justice, shall proceed to the trial, and examine all points as if he had pleaded not guilty.

Formerly, if he were found to be obstinately mute, then, if it were on an indictment of high treason, standing mute was equivalent to a conviction, and he received 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 was always equivalent to conviction. But upon indictments for other felonies, 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, receive the terrible sentence of peine forte et dure. Before this was pronounced, however, 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; 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. Thus tender was the law of inflicting this dreadful punishment; but if no other means could prevail, and the prisoner continued stubbornly mute, the judgment was then given against him without any distinction of sex or degree. A judgment, which was purposely ordained to be exquisitely severe, that by that very means it might rarely be put in execution.

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 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; where it was occasionally used as an engine of state, not of law, more than once in the reign of Queen Elizabeth. 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.

To return to the peine forte et dure, which was the English judgment for standing mute; it was that the prisoner be remanded to prison, and put in 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.

This punishment seems to have been introduced by the statute

as will not put them

3 Edw. I. c. 12, which directs such persons "selves upon 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 forte en dure, as those which refuse to be at the common "law of the land." And, at first, the form of the judgment appears to have been only a very strait confinement in prison, with hardly any degree of sustenance. The practice of loading him with weights, or pressing him to death, whence we have still in Newgate what is called the press yard, seems to have been gradually introduced between 31 Edw. III. and 8 Hen. IV., at which last period it first appears upon our books; being intended as a species of mercy to the delinquent, by delivering him the sooner from his torment: and hence, also, it was that the duration of the penance was then altered; and instead of continuing till he answered, it was directed to continue till he died.

The uncertainty of its origin, the doubts that were conceived of its legality, and the repugnance of its theory, for it rarely was carried into practice, to the humanity of the laws of England, all concurred to require a legislative abolition of this cruel process, and a restitution of the ancient common law; whereby the standing mute in felony, as well as in treason and in trespass, amounted to a confession of the charge. But this change did not take place till the reign of Geo. III.,* when it was enacted that every person who,

* If the corruption of the blood, and the consequent escheat in felony had been removed, the judgment of peine forte et dure might perhaps have still innocently remained, as a monument of the savage rapacity with which the lordly tyrants of feudal antiquity hunted after escheats and forfeitures; since no one would ever have been tempted to undergo such a horrid alternative. For the law was, that by standing mute, and suffering this heavy penance, the judgment, and of course the corruption of the blood and escheat of the lands, were saved in felony and petit treason, though not the forfeiture of the goods; and therefore this lingering punishment was probably introduced, in order to extort a plea: without which it was held that no judgment of death could be given, and so the lord lost his escheat. We find accordingly in our legal history, numerous instances of persons who have had resolution and patience to undergo so perilous a death in order to benefit their heirs by preventing a forfeiture of their estates. There is a memorable story of an ancestor of an ancient family in the north of England. In a fit of jealousy he killed his wife, and put to death his children who were at home, by throwing them from the battlements of his castle; and proceeding with an intent to destroy his only remaining child, an infant, nursed at a farm-house at some distance, he was intercepted by a storm of thunder and lightning. This awakened in his breast the compunctions of conscience. He desisted from his purpose, and having surrendered himself to justice, in order to secure his estates to this child, he had the resolution to die under the dreadful judgment of peine forte et dure.

being arraigned for felony or piracy, should stand mute, should be convicted of the same; and the same judgment and execution be thereupon awarded, as if the person had been convicted by verdict or confession. The adoption of a more humane rule was reserved for a subsequent generation; for now, by statute 7 & 8 Geo. IV. c. 28, if any person shall stand mute of malice, or will not answer directly to the indictment, the court may order a plea of "not guilty," to be entered, on which the trial may proceed, a course, it may be added, which is now invariably adopted.

II. The other incident to arraignment, exclusive of the plea, is the prisoner's actual confession of the indictment. Upon a simple and plain confession, the court has nothing to do but to award judgment: but it is usually very backward in receiving and recording such confession, especially in capital felonies, out of tenderness to the life of the subject, and will generally advise the prisoner to retract it, and plead to the indictment.

CHAPTER XXVI.

OF PLEA AND ISSUE.

Plea to the jurisdiction - Demurrer - Plea in abatement-Special pleas in bar; auterfois acquit; auterfois convict; auterfois attaint; and pardonGeneral issue-Not guilty.

THE plea of the prisoner, if he does not confess or stand mute, is either, 1. A plea to the jurisdiction; 2. A demurrer; 3. A plea in abatement; 4. A special plea in bar; or, 5. The general issue.†

I. A plea to the jurisdiction is where an indictment is taken before a court that has no cognizance of the offence. If, for example, a man be indicted for a rape at the quarter-sessions, he may except to the jurisdiction of the court without answering to

*Two instances have occurred of persons who refused to plead being condemned and executed; one at the Old Bailey for murder, in 1777; the other for burglary, at the summer assizes at Wells, in 1792.

† Anciently there was another plea, that of sanctuary, whereby, if a person accused of any crime, except treason, wherein the Crown, and sacrilege, wherein the Church, was too nearly concerned, had fled to any church, or churchyard, and within forty days after confessed his guilt and abjured the realm (see ante, page 19), he saved his life; but was nevertheless attainted, and forfeited all his goods and chattels. The privilege of sanctuary was taken

away in the reign of James I.