process; and such objection, if allowed, will have the effect of reversing the outlawry and setting aside the forfeiture, and will enable the party accused to plead and defend himself against the indictment (q). In one instance, indeed, though the outlawry be regular, its consequences may still be avoided for by 5 & 6 Edw. VI. c. 11 (which permits outlawry for treason to be awarded against persons residing abroad),—if a person so outlawed shall, within one year, yield himself to the chief justice, and offer to traverse the indictment, he shall be admitted so to do; and, being acquitted of the indictment, shall be discharged of the outlawry. [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 also be had at any time before trial;—or, as it seems, at any time before judgment is given, and even afterwards, where error does not lie ();-to certify, and remove the indictment, with all the proceedings thereon], from any inferior court, into the Queen Bench Division of the High Court. [For this is the sovereign's ordinary court of justice in causes criminal; and has consequently the power of issuing such writ to any court of rank subordinate to its own in causes of this description, unless the certiorari be taken away by the express words of some Act of Parliament. A certiorari removing the proceedings into such court is commonly granted for one of these four purposes: either, 1, to consider and determine the validity of an indictment, and the proceedings thereon, and to quash or confirm them as there is cause; 2, (where it is surmised that a partial or insufficient trial will probably be had in the court below,) in order to have the person against whom it is found, tried at bar, or else before the justices of nisi prius, according to the course (9) See Chit. Cr. L. 368, 369; 4 Bl. Com. 320; Tynte v. Reginam, 7 Q. B. 216. (r) 1 Chit. Cr. L. 380. [of a civil action (s); 3, in order to plead the royal pardon in the Queen's Bench: or, 4, in order to issue process of outlawry against the offender, in places where the process of the inferior court will not reach him (t). 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 indeed the record is remanded 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; and the former was once entitled to demand it as a matter of right, though the application of the latter has always been dependent on the discretion of the court (u).] But now, under 5 & 6 Will. IV. c. 33, and 16 & 17 Vict. c. 30, s. 5, no certiorari shall issue at the instance of the prosecutor, or of any other person (except the attorney-general), without motion first made in the Queen's Bench Division of the High Court, or before some judge thereof, and leave obtained in the same manner as where application is made on the part of the defendant: and moreover, before the allowance of any writ of certiorari, the party on whose behalf it is applied for, must enter into a recognizance before a judge of such division or before a justice of the peace, in such sum and with such sureties as the court or judge may direct, and with such conditions as are contained in the previous statutes 5 & 6 W. & M. c. 11, and 8 & 9 Will. III. c. 33, passed in relation to the same subject (x). And by 16 & 17 Vict. c. 30, s. 4, it is enacted, Et (s) 14 Hen. 6, c. 1; 6 Hen. 8, c. 6; 4 Rep. 43; 2 Hale, P. C. 41. vide sup. p. 305. (t) 2 Hale, P. C. 210. (u) 4 Bl. Com. 321. In the exercise of this discretion, a certiorari has been seldom granted at the instance of the defendant, to remove indictments from the justices of gaol delivery. (See Hawk. P. C. b. 2, c. 27, s. 27; R. v. Gwynne, Burr. 749; R. v. Kingston, Cowp. 283; R. v. Harrison, 1 Chit. Rep. 571.) (x) By 5 & 6 Will. 4, c. 33, a recognizance was required only where that no indictments, except against bodies corporate not authorized to appear by attorney in the court in which the indictment is preferred, shall be removed into the Queen's Bench Division of the High Court, or into the Central Criminal Court, 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 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 the satisfactory trial of the same. Another Act (19 & 20 Vict. c. 16) contains provisions, of which some notice is proper in this place, with regard to the trial of offences, the indictment for which has been removed by certiorari into the Queen's Bench Division of the High Court. 1. Whenever any indictment or inquisition has been so removed in the case of some felony or misdemeanor alleged to have been committed in a place out of the jurisdiction of the Central Criminal Court, the Queen's Bench Division of the High Court (or a judge thereof in vacation) is empowered to order the trial thereof to be there tried nevertheless, provided it shall appear expedient to the ends of justice that such course should be taken (y). 2. Wherever any person shall have been committed or held to bail for any such felony or misdemeanor, the same Division, or a judge thereof in vacation, if it the writ was obtained on the part of the defendant. But by 16 & 17 Vict. c. 30, s. 5, it is also required from the prosecutor; and this last statute provides, moreover, for the payment of the costs incurred subsequent to the removal, either by the defendant or the prosecutor, according to the ultimate issue of the proceedings. (See The Queen v. Oastler, Law Rep., 9 Q. B. 132.) As to the terms on which a certiorari will be granted, see The Queen v. Jewell, 7 Ell. & Bl. 140. No recognizance on removal is required from the prosecutor, in the case of an indictment found at quarter sessions against a corporation. (See The Queen v. Manchester, 7 Ell. & Bl. 463.) (y) 19 & 20 Vict. c. 16, s. 1. shall appear expedient that the person charged shall be tried at the Central Criminal Court, may make an order to that effect; 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 (z). 3. Wherever a certiorari shall be delivered to any court for the purpose of removing an indictment or inquisition therefrom, a person charged thereby who shall then be in prison, shall not be discharged by such court, but shall remain there till discharged by due course of law (a). [It is at this stage of the proceeding also-viz., after indictment found, and before arraignment-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 (b). And also, that in places of exclusive jurisdiction, as the two universities, indictments must be delivered up, on challenge and claim of cognizance, to the courts therein established by charter, and confirmed by Act of Parliament, to be therein respectively tried and determined (c).] (2) 19 & 20 Vict. c. 16, s. 3. (a) Sect. 11. See sects. 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 (b) Vide sup. pp. 296, 299. CHAPTER XVI. OF ARRAIGNMENT AND ITS INCIDENTS. WHEN a person against whom a true bill of indictment is found appears voluntarily to plead thereto, or is brought up in custody to answer it, he is immediately to be arraigned; which is the next stage of criminal prosecution (a). [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 (b). The prisoner is to be called to the bar by his name; and it is laid down in our antient books (c), that, even under an indictment of the highest nature, he must be brought to the bar without irons, or any manner of shackles or bonds: unless there be evident danger of any escape, and then he may be secured with (a) Vide sup. p. 343. In misdemeanors, the trial of a defendant after he has once appeared (which appearance, in case of an indictment at the sessions or assizes, must be in person) may take place in his absence. (See 4 Bl. Com. 375; 1 Chit. Cr. L. 411; The Queen v. Birmingham and Gloucester Rail. Co., 3 Q. B. 233.) And by 19 & 20 Vict. c. 16, s. 6, it is provided that on application to the Queen's Bench Division, or a judge thereof, for an order, that a person charged with an offence alleged to have been committed out of the jurisdiction of the Central Criminal Court, shall nevertheless be there tried,-it shall not be necessary for the accused to be brought or appear in person before such Division or judge. (b) 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." (c) 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. |