Front Page Titles (by Subject) CHAPTER XXIV.: OF PROCESS UPON AN INDICTMENT. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XXIV.: OF PROCESS UPON AN INDICTMENT. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF PROCESS UPON AN INDICTMENT.
*[*318We 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. We have hitherto supposed the offender to be in custody before the finding of the indictment, in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled or secretes himself in capital cases, or hath not in smaller misdemeanours been bound over to appear at the assizes or sessions, 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; for the indictment cannot be tried unless he personally appears, according to the rules of equity 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.
The proper process on an indictment for any petit misdemeanour, or on a [Editor: illegible character] 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 **319]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 third shall issue, called an alias and a pluries capias. But on indictments for treason or felony a capias is the first process; and for treason or homicide only one shall be allowed to issue,(a) or two in the case of other felonies, by statute 25 Edw. III. c. 14, though the usage is to issue only one in any felony, the provisions of this statute being in most cases found impracticable.(b) And so, in the case of misdemeanours, 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.1 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, 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 misdemeanours is the same as for outlawries upon civil actions, (of which, and the previous process by writs of capias, exigi facias, and proclamation, we spoke in the preceding book,)(c) 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.(d)2 His life is, however, still under the protection of the law, as hath formerly been **320]observed;(e) 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,(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 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,3 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 *[*321counties or places where the process of the inferior judges will not reach him.(i) Such writ of certiorari, when issued and delivered to the inferior court for removing any record or other proceeding, as well upon indictment as otherwise, supersedes 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 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)4
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.
[(a) ] See Appendix, 1.
[(b) ] 2 Hal. P. C. 195.
[1 ] Now, by the 48 Geo. III. c. 58, when any person is charged with an offence below the degree of felony, one of the judges may, on an affidavit thereof, or on the production of an indictment, or an information filed, issue his warrant for apprehending and holding him to bail; and if he neglects or refuses to become so bound, he may be committed to gaol until he conforms or is discharged.—Chitty.
By the statute 11 & 12 Vict. c. 42, s. 3, when any indictment is found in any court of oyer and terminer or gaol-delivery, or in any court of general or quarter sessions, against any person at large, whether he has been previously bound by recognizance to appear or not, the clerk of indictments, or clerk of the peace, as the case may be, may at any time issue a certificate of such indictment having been found; and, upon its production, a justice for the county or place where the offence was committed, or where the defendant resides, may issue his warrant, and thereupon commit him for trial or admit him to bail.—Stewart.
[(c) ] See book iii. pages 283, 284.
[(d) ] 2 Hal. P. C. 205.
[2 ] In most cases now in which a person convicted by a verdict is deprived of clergy, a person outlawed will also be ousted of clergy; yet some few instances may perhaps still remain where a person outlawed will have clergy, though if he had been tried for the same offence he would not have been entitled to that privilege. See Foster, 358. 2 Leach. Hawk. 481. 4 T. R. 543.—Christian.
[(e) ] See page 178.
[(f) ] Mirr. c. 4. Co. Litt. 128.
[(g) ] 1 Hal. P. C. 497.
[(h) ] Bracton, fol. 125.
[3 ] 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 vs. Young, 2 T. R. 473. Rex vs. Jukes, 8 T. R. 542. But certiorari cannot be taken away by any general, but only by express negative, words, (Rex vs. Reeve, 1 W. Bla. 231;) and a statute taking away certiorari does not take it from the crown, unless expressly mentioned. Rex vs.—, 2 Chitt, R. 136; and see Rex vs. 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 Hawk. P. C. 286. Rex vs. Morely, 2 Burr. 1040. Hartley vs. Hooker, Cowp. 524.—Chitty.
[(i) ] 2 Hal. P. C. 210.
[(k) ] 2 Hawk. P. C. 287. 4 Burr. 749.
[4 ] But, by statute 5 & 6 W. IV. c. 33, s. 1, it was enacted that no certiorari should issue to remove any indictment or presentment into the King’s Bench from any court of sessions, assize, oyer and terminer, and gaol-delivery, or any court, at the instance of the prosecutor or any other person, (except the attorney-general,) without motion first made in the King’s Bench or before some judge of that court, and leave obtained in the same manner as where the application was made by the defendant. And now, by statute 16 Vict. c. 30, s. 4, no indictment, except indictments against bodies corporate not authorized to appear by attorney in the court in which the indictment is preferred, can be removed into the court of Queen’s Bench or into the Central Criminal Court by writ of certiorari, either at the instance of the prosecutor or of the defendant, (other than the attorney-general acting on behalf of the crown,) unless it be made to appear to the court from which the writ is to issue, by the party applying for the same, that a fair and impartial trial of the case 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 its satisfactory trial. If the indictment be removed at the instance of the defendant, he must enter into a recognizance to pay costs if convicted; and so, on the other hand, if the indictment be removed at the instance of the prosecutor, he must enter into a recognizance to pay costs in the event of the defendant being acquitted.—Stewart.