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committed or held to bail for any such felony or misdemeanor, the Court of Queen's Bench, or judge in vacation, if it shall appear expedient to the ends of justice that the person charged should be tried at the Central Criminal Court, may make an order to that effect (b); and thereupon a writ of certiorari shall be issued to the justices of oyer and terminer, or of the peace, or coroner, (as the case may require,) commanding them to certify and return to that Court any indictment or inquisition which is then pending or shall thereafter be found against such person (c). 3. Wherever any certiorari shall be delivered to any court for the purpose of removing any indictment or inquisition therefrom, any person charged by such indictment or inquisition who shall then be in prison, shall not be discharged by such court, but shall remain there till discharged by due course of law (d).

[At this stage of the proceeding also-viz., after indictment found, and before arraignment-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 (e). of exclusive jurisdiction, as the ments must be delivered up, on conusance, to the courts therein established by charter,

the Queen's Bench, to the proper officer of the Central Criminal Court.

(b) By 25 & 26 Vict. c. 65, a similar provision is made in reference to the trial of persons subject to the Mutiny Act, who are charged with having committed murder or manslaughter out of the jurisdiction of the Central Criminal Court, on persons subject to that Act..

(c) Sect. 3. By sect. 4, the justice, coroner, clerk of the peace or of assize, or other person having the custody of the indictment or inquisition, is to transmit any recogni

And also, that in places two universities, indictchallenge and claim of

zances, depositions, examinations, or informations relating to the offence charged, which shall be in his possession, to the proper officer of the Central Criminal Court.

(d) Sect. 11. See ss. 8, 9, 10, as to the recognizances required, (in cases of orders made, or writs of certiorari issued under this Act,) from the person charged, or the prosecutor, or witnesses, to take their trial, prosecute or give evidence, (as the case may require,) at the Central Criminal Court.

(e) Vide sup. pp. 382, 383.

[and confirmed by Act of Parliament, to be therein tively tried and determined (ƒ).]

respec

Of process upon informations, not much requires to be said. In general the course of proceeding is similar to that upon indictments: but the first process is by writ of subpœna instead of venire; and if the defendant does not appear on this, a capias is awarded (g). Supposing it to be necessary, however, to proceed to outlawry, the first process is by venire facias, as in the case of an outlawry upon an indictment for a misdemeanor, and not by subpœna (h).

(f) Vide sup. p. 405 et seq. (g) 1 Chit. Cr. L. 865.

(h) 1 Chit. Cr. L. 866.

CHAPTER XX.

OF ARRAIGNMENT AND ITS INCIDENTS.

THE appearance of the offender, (enforced by the methods pointed out in the last chapter, unless he appears voluntarily, or is already in custody,) must, in general, be in person. But in indictments or informations in the Court of Queen's Bench, for misdemeanors, an appearance by attorney is allowed (a). And in misdemeanors generally, wherever the proceedings are instituted, the trial of the defendant, after he has once appeared, is permitted to take place in his absence (b). Immediately on the appearance to an indictment, the offender is to be [arraigned thereon; which we have considered as the fifth stage of criminal prosecution (c).

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 (d). The prisoner is to be called to the bar by his name; and it is laid down in our antient books (e), that though, under an indictment of the highest

(a) By 19 & 20 Vict. c. 16, s. 6, it is provided that on application to the Queen's Bench for an order, that a person charged with any offence committed, or supposed to be committed, out of the jurisdiction of the Central Criminal Court, shall nevertheless be there tried, -- it shall not be necessary for such person to be brought or appear in person before the Court of Queen's Bench or judge to whom the application is made.

(b) 4 Bl. Com. 375; 1 Chit. Cr. L. 411.

(c) Vide sup. p. 424.

(d) This word in Latin (says Sir M. Hale, vol. ii. p. 216) is no other than ad rationem ponere, (and in French ad reson, or abbreviated a resn,) that is, "to call to account."

(e) Bract. 1. 3, De Coron. c. 18, s. 3; Mirr. c. 5, ss. 1, 54; Flet. 1. 1, c. 31, s. 1; Brit. c. 5; Staundf. P. C. 78; 3 Inst. 34; Kel. 10; 2 Hale, P. C. 219; Hawk. P. C. b. 2, c. 28,

s. 1.

[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 (f).

When he is brought to the bar,] in case of treason or felony, [he is called upon by name to hold up his hand (g); which, though it may seem a trifling circumstance, yet is 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 (h). 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 (i).

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.]

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 the

(f) State Tr. iv. 230. And see Hawk. P. C. b. 2, c. 28, s. 1, n. (2); Waite's case, 1 Leach, C. C. 36.

(g) By 19 & 20 Vict. c. 16, s. 7, it is provided, that whenever any indictment or inquisition shall have been transmitted or removed to the Central Criminal Court under the provisions of that Act, the person

charged shall be arraigned in that
court in the same manner in all
respects as if the offence had been
actually committed within the juris-
diction of the court, and the indict-
ment or inquisition had been origi-
nally returned there.

(h) 2 Hale, P. C. 219.
(i) R. v. Ratcliffe, 1 W. Bl. 3.

[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 (j).] In such case the rule of the antient law was, that a jury was to be impanelled to inquire whether the prisoner stood obstinately mute, or was dumb ex visitatione Dei. If the latter appeared to be the case, the judges were to proceed to the trial, and examine all points as if he had pleaded not guilty (k). But if found to be obstinately mute, then, in treason, it was held that standing mute was equivalent to conviction; and the law was the same as to all misdemeanors. But upon indictment for any other felony, the prisoner, after trina admonitio, and a respite of a few hours, was subject to the barbarous sentence of peine forte et dure(l); viz. [to be remanded to prison and put into a low dark chamber, and there laid on his back on the bare floor naked, unless where decency forbade; that

(j) He was also formerly considered as standing mute, if, upon pleading not guilty, he at the same time refused to put himself upon the country, that is, refer the matter to trial by jury. (2 Hale, P. C. 316; 4 Bl. Com. 324, 340.) But now, by statute 7 & 8 Geo. 4, c. 28, s. 1, he shall by the plea of not guilty, without any further form, be deemed to have put himself upon his country, for trial; and the court shall order a jury for the trial of such person accordingly.

(k) 4 Bl. Com. 324; Hawk. P. C. b. 2, c. 30, s. 7.

(1) Blackstone (vol. iv. p. 327) remarks on this punishment, that it has been doubted whether it subsisted at the common law, or was

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Book, 8 Hen. 4, c. 2. By these two last authorities, it would appear that at common law, the standing mute in felony (as well as in treason and misdemeanors) was a confession of the charge. As to peine forte et dure, much information will be found in Reeves's Hist. Eng. L. vol. ii. p. 134; vol. iii. pp. 133, 250, 418. That author thinks it was introduced sometime between the fifth year of Henry the third, and the third year of Edward the first.

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