reasons no general rule can be laid down, because the oc-
casions on which it may operate are various and diver-
sified. Acceding to delay, at the instance of the de-
fendant, on good reasons being advanced for it, may be
said to be expedient to justice, but it is, nevertheless, an in-
dulgence to be sought, and not a right to be claimed. In
general terms, therefore, all that can be advanced with pre-
cision on this head is, that there must appear no laches, on
the part of the defendant, no negligence or undue forbear-
ance, in endeavouring to serve the usual process of the
Court, or to compel the attendance of the witness; but his
continual absence, or actual incapacity to attend, and the
employment of every reasonable effort to compel such
attendance, must, in the first place, be fully verified
upon oath, as well as the materiality of his testimony in
the case, to entitle the party to a compliance with the
application. Thus far, as to the facts themselves to be
stated; but this not all; for the affidavit must be positive Affidavit.
in its verification of those facts, not conjectural, or hypo-
thetical; and it must moreover state directly and unam-
biguously, that there is a reasonable ground for believing
that the delay sought for will tend to the furtherance of
justice, by enabling the party to obtain the testimony of
the witness at an early period to be proposed; and lastly,
that due and sufficient notice has been given of the appli-
cation to the opposite party. It is generally true that the
person on whose behalf the application for postponement
is made, must himself make the affidavit; but this rule
admits of many exceptions. If he be prevented by ab-
sence, sickness, age, or infirmity, or other sufficient cause,
his attorney's affidavit, if it be ample and satisfactory,
will be sufficient. If the absence of the witness arise
from illness, the affidavit of a medical person will ever
be the most effectual, for such is deemed sufficient to pre-
vent the estreat of a witness's recognizance.

More notice has been taken of this particular subject than it may appear entitled to receive; but this has been thought proper, because there isgenerally no part of the proceedings before courts of quarter session less critically attended to by the courts, or more carelessly executed by the professional attendants.

The affidavit and notice may be in the following, or the like forms, varied according to the circumstances of each particular case.

of

THE KING ON THE PROSECUTION OF A. B. v. P. Q. P. Q. the defendant above-named, and X. Y. of

in the county Joint affidavit of attorney for the said P. Q. severally make oath and say. And a defendant and

his solicitor.

first this deponent the said P. Q. for himself saith, that one D. D. of in the county of seedsman, and one of the co-partners in the house of C. C., D. D. and Co. at aforesaid, in the county of aforesaid, he the said P. Q. is advised, and believes, is a material and necessary witness for him, this deponent the said P. Q. and that he cannot safely proceed to the trial of the above indictment without his the said D.D.'s testimony. And this deponent, the said P. Q. further saith, that as soon as possible after he received notice of the aforesaid bill of indictment against him, he applied by letter to the said D. D. informing him that he the said P. Q. would require the attendance of him the said D. D. at the trial thereof, and requiring to be informed whether he the said D. D. was then in England, it being known to him the said P. Q. that the said D. D. is frequently resident at Amsterdam on account of the dealings and business of the said house of C. C., D. D. and Co. And this deponent further saith, that in answer to his said letter, he was informed by the said C. C. that the said D. D. was at that time at Amsterdam aforesaid, and was not likely to return from thence before the end of the month of then next ensuing, which information the said deponent believes to be true. And the said deponent further saith, that he made another application by letter on the day of instant, addressed to the said C. C. inquiring whether the said D. D. was yet returned from Amsterdam, to which he, this deponent, received an answer so late as - last, from the said C. C. informing him, this deponent, that the said D. D. was not yet returned, and that he was not expected to return till the end of the month of next, as before stated, which information this deponent does verily believe to be true. And this deponent, the said P. Q. further saith, that he fully expects to be able to procure the presence of the said D. D. at the next general quarter session of the peace, to be holden for this county of and the said D. D. will be then and there able and willing to attend the trial of the above-mentioned indictment. And this deponent, the said X. Y. for himself saith, that he is the attorney appointed by the said P. Q. to defend him on the trial of the said bill of indictment, on the prosecution of A. B. and that the said D. D. will be a material and necessary witness at the hearing of the same, and that without his testimony the said P. Q. cannot safely go to trial. And this deponent for himself further saith, that on the day of last past, he addressed a letter by the direction of the said P. Q. to the said D. D. at Amsterdam, requesting him to return, if possible, in order to be present at the trial of the beforementioned indictment, at the present session of the peace, and that he received an answer to the said letter from the said D. D. on the day of last, in which the said D. D. assured him, this deponent, that he could not possibly return to England till after the - day of then next ensuing, but that he hoped to be able, and would be willing, to attend at the next general quarter session of the peace, to be holden at for the county of aforesaid. And this deponent, the said X. Y. further saith, that he has no doubt but the said D. D. will be ready and willing to attend at the next session of the peace as aforesaid. Sworn, &c. Affidavit of me- County ofO. P. of- in the said county, surgeon, maketh to wit. oath and saith, that M. N. of carpenter, about ten days since fractured his scull in a dangerous manner, and is still confined to his bed on account of the same, and is utterly incapable of being removed from his said bed without imminent danger of his life. Sworn, &c.

dical attendant.

-

at

THE KING ON THE PROSECUTION OF A. B. V. P. Q.

day of

day of

Mr. A. B. Take notice, that I do hereby countermand the notice Notice of appliof trial of the above indictment, dated the instant, cation to postand that I shall, on the instant, at the pone the trial. sitting of the court of quarter session at - for the county of or as soon after as counsel can be heard, move the said Court that the trial of the said indictment may stand over till the next general quarter session of the peace for the said county, on account of the absence of a material witness for the defendant in the same, who is absent in foreign parts, and whom I have not been able to serve with a subpœna.

X. Y.

Attorney to the defendant in the said prosecution. To Mr. A. B. Prosecutor, &c.

(or to his Attorney.)

The postponement of a trial may also emanate from the Postponement of Court, independently of the desire of the parties prose- trial by the cuting or defending. Thus, if several be in custody for Court. a conspiracy or other joint misdemeanor, and bills have been found, and one or more of them prefer to take their trial immediately, and the others to traverse with their pledges according to the regular form, the Court will put off the trial till the period when, by the customary expiration of the traverse, all the parties can be tried together. This seems to be the establised practice, and the reason given for it is, that were it otherwise, as there is generally a difference in the guilt of the different offenders, or in the evidence which is to attach guilt to them, those who have the best chance of being acquitted would always offer themselves for immediate trial, in order that they might afterwards become witnesses for their confederates on the trial of their traverses. (m) On the point of expediency there may be force in this reasoning; but at the same time it appears to be a great hardship to keep a person in prison without trial, who is willing to be tried, because another, who is more fortunate in obtaining sureties, prefers to have his trial postponed. It may, therefore, be a question, whether in such a case the Court is justified in rejecting such security as the parties so offering themselves for trial are able to offer, though it should be only by their own recognizance, to be forthcoming at the same time with their co-defendants, and, by such rejection, detaining them in prison without trial.

(m) The King v. Teal, 11 East, R. 307; the King v. De Berenger and others, 3 M, and S. 67.

$4. OF ARRAIGNMENT,

CHALLENGE, AND OTHER

Arraignment.

PRELIMINARIES OF TRIAL.

In cases of felony, no traverse being allowed when bills are found, a convenient number of the prisoners are placed at the bar for arraignment; which is the legal term for calling on a prisoner to answer to a charge of felony. Parts of arraign. The arraignment consists of three parts; the calling the prisoner to the bar by his name, and requiring him to hold up his hand; the reading over the indictment to him; and the asking him whether he is guilty or not guilty.

ment.

Requiring the prisoner to hold

up his hand.

Indictment read.

Asking the prisoner if he be guilty or not.

The first is done by the officer addressing him thus,"A. B. hold up your hand;" which is intended to identify the prisoner in court as the party indicted. A compliance with this requisition is not, however, indispensable, and it has been said that it is usual to omit it when a peer is to be tried. (n) If, therefore, the prisoner decline to hold up his hand, but make no objection that he is not the party intended, the trial may proceed.

The second proceeding, the reading of the indictment, is more material, because, in cases of felony, where the prisoner is not entitled to a copy, it is the only means by which, before he pleads, he can ascertain the precise charge to which he is to answer. This was required to be done in English even at the time when the proceedings themselves were written in Latin. (o) It should always be done slowly and distinctly, putting the charge into the second person, as thus:-"You, A. B. stand indicted by the name of A. B. late of the parish of Sonning, in the county of Berks, labourer, for that you, on &c." reading the whole indictment in the same manner. If the prisoner desire it, he is entitled to have it read so slowly as to enable his solicitor to take a copy as the officer proceeds.

After the reading of the indictment the officer addresses the prisoner,-" How say you, A. B. are you guilty of the felony whereof you stand indicted, or not guilty?" If the prisoner pleads guilty, the court may immediately record the plea, and either proceed immediately to give judgment, or examine witnesses as to the circumstances of the offence, for the guidance of their own discretion in determining on the sentence. But it is usual for the officer to explain to the prisoner the consequences of his plea, and to ask him again whether he persists in it; and there is a very prevalent practice among judges of assize,

(n) 2 Hale, 219.

(0) 37 Edw. 3. c. 15.

of doing far more than this-of entreating the prisoner to withdraw his plea, admonishing him of his right as an Englishman to a trial, and manifesting the greatest reluctance to receive his open confession of guilt. How far this practice at sessions shall be adopted must be left to the good sense of the chairman. (p)

plead.

If the prisoner obstinately refuse to plead, the law, Consequence of until lately, required that he should have judgment as on a refusal to a plea guilty. But by 7 and 8 Geo. 4. c. 28. s. 1. it is enacted, "That if any person, being arraigned upon or charged with any indictment or information for treason, felony, piracy, or misdemeanor, shall stand mute of malice, or shall not answer directly to the indictment or information, in every such case, it shall be lawful for the Court, if it shall so think fit, to order the proper officer to enter a plea of "not guilty" on behalf of such person; and the plea so entered shall have the same force and effect as if such person had actually pleaded the same.

guilty.

On the prisoner pleading not guilty, it was usual for Proceedings on the officer to ask the prisoner-" How will you be tried?" plea of not and to direct him to make answer-" By God and my country;" to which the officer rejoined" God send you a good deliverance." But these unnecessary forms are now abolished by 7 and 8 Geo. 4. c. 28. s. 1. which directs, that when a prisoner shall plead not guilty, he shall by such plea, without any further form, be deemed to have put himself on the country for trial, and the

(p) It seems difficult for those who are not familiar with the peculiar humanity of criminal courts to comprehend the principles upon which these exhortations are justified. The learned persons who thus endeavour to prevail on prisoners to retract their solemn admissions of guilt, made in the hearing of the jury, would receive in evidence, without the smallest reluctance, any loose declarations made by them to a constable, who had merely abstained from offering any inducement to procure a confession, and would leave such declarations to the jury as cogent evidence of guilt. Why then are the admissions of prisoners made at the moment when the consequences of an admission are most obvious, to be rejected; the prisoner implored or threatened into retracting them; and the jury required to forget them, and attend to a long tissue of circumstances to prove that which has been confessed; perhaps to hear among them a confession made out of court; and to hear that confession put, after a trial of hours, by the judge himself, as almost conclusive? It is assuredly right to take care that the prisoner fully understands the meaning and effect of the plea of guilty before it is recorded; but when this is ascertained, it would seem to ordinary understandings, that the duty of the Court towards the prisoner is fulfilled, and that the very end of the inquiry being reached with certainty, it is not expedient to abandon that end for the purpose of pursuing imperfect means, and giving to justice the chance of a disgraceful failure.