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ously:" and all these to ascertain the intent. In rapes, the word “rapuit,” or “ravished," is necessary, and must not be expressed by any periphrasis; in order to render the crime certain. So in larcenies also, the words “felonice cepit et asportavit,” “ feloniously took and carried away,” are necessary to every indictment; for these only can express the very offence. Also in indictments for murder, the length and depth of the wound should in general be expressed, in order that it may appear to the court to have been of a mortal nature; but if it goes through the body, then its dimensions are immaterial, for that is apparently sufficient to have been the cause of the death. Also, where a limb, or the like, is absolutely cut off, there such description is impossible. (v) Lastly, in indictments the value of the thing, which is the subject or instrument of the offence must sometimes be expressed. In indictments for larcenies this is necessary, that it may appear whether it be grand or petit larceny; and whether entitled or not to the benefit of clergy; in homicides of all sorts it is necessary; as the weapon with which it is committed is forfeited to the king as a deodand. (7)
The remaining methods of prosecution are without any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation. One. of these by the common law, was when a thief was taken with the mainour, that is, with the thing stolen upon him in manu. For he might, when so detected flagrante delicto, be brought into court, arraigned, and tried, without indictment: as by the *Danish law he might be taken and hanged upon *2007 the spot, without accusation or trial. (20) But this proceeding was taken 00. away by several statutes in the reign of Edward the Third : (x) though in Scotland a similar process remains to this day. (y) So that the only species of proceeding at the suit of the king, without a previous indictment or presentment by a grand jury, now seems to be that of information.
III. Informations are of two sorts: first, those which are partly at the suit of the king, and partly at that of a subject; and, secondly, such as are only in the name of the king. The former are usually brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to the use of the king, and another to the use of the informer; and a sort of qui tam actions (the nature of which was explained in a former book, (2) only carried on by a criminal instead of a civil process: upon which I shall therefore only observe, that by the statute 31 Eliz. c. 5, no prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king and in part to the prosecutor, can be brought by any common informer after one year is expired since the commission of the offence; nor on behalf of the crown after the lapse of two years longer; nor, where the forfeiture is originally given only to the king, can
(v) 5 Rep. 122. (w) Stiernh. de jure Sueon. . 3, c. 5. (C) 2 Hal. P. C. 149. (y) Lord Kaims, I, 331. (2) See book III, page 162.
Some important changes have been made in the law relative to indictments by recent statutes. By statute 14 and 15 Vic. c. 100, s. 24, no indictment is to be held insufficient for omitting to state the time at which the offence was committed when time is not of the essence of the offence, nor by stating the time imperfectly, nor for stating the offence to have been committed on a day subsequent to the pending of the indictment, or on an impossible day, or on a day that never happened. By section 9, a person on trial for an offence, if it shall appear that he did not complete it, may be convicted of an attempt to commit the same. By 24 and 25 Vic. c. 96, s. 85, & person on trial for robbery may be acquitted on the main charge and convicted of an assault with intent to rob. By section 72 there may be a conviction for larceny on an indictment for embezzlement. By section 88 a person indicted for false pretences may be convicted of larceny. By 9 Geo. IV, c. 31, s. 14, a woman indicted for the murder of her infant child may be convicted of endeavoring to conceal its birth, And by 24 and 25 Vic. c. 94, an accessory before the fact to any felony may be indicted in all respects as if he were the principal felon. And by statutes 24 and 25 Vic. c. 100, in an indictment for felonious homicide it is not necessary to set forth the manner in which, or the means by which, the death was caused. Indictments in other cases have been very much simplified.
() Very broad powers to amend indictments are conferred upon the courts by 14 and 15 Vic. c. 100. As to amendment of the record after judgment, see Gregory v. Reg., 15 Q. B. 957; Bowers v. Nixon, 12 id. 546.
such prosecution be had after the expiration of two years from the commission of the offence. (8)
The informations that are exhibited in the name of the king alone, are also of two kinds: first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the attorney general ; secondly, those in which, though the king is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the king's coroner and attorney in the court of king's bench, usually called the master of the crown-office, who is for this purpose the standing officer of the public. The objects of the king's own prosecutions, filed ex officio by his own attorney
o general, are properly such *enormous misdemeanors as peculiarly tend LOJ to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences so high and dangerous in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal: which power, thus .necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The objects of the other species of informations, filed by the master of the crown-office upon the complaint or relation of a private subject are any gross and notorious misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind, (a) not peculiarly tending to disturb the government (for those are left with the care of the attorney general), but which, on account of their magnitude or pernicious example, deserve the most public animadversion. (9) And when an information is filed, either thus, or by the attorneygeneral ex officio, it must be tried by a petit jury of the county where the offence arises: after which, if the defendant be found guilty, the court must be resorted to for his punishment.
There can be no doubt but that this mode of prosecution by information (or suggestion), filed on record by the king's attorney-general, or by his coroner or master of the crown-office in the court of king's bench, is as ancient as the common law itself. (6) For as the king was bound to prosecute, or at least to lend the sanction of his name to a prosecutor, whenever the grand jury informed him upon their oaths that there was a sufficient ground for instituting a criminal-suit: so when these his immediate officers were otherwise sufficiently assured that a man had committed a gross misdemeanor, either porsonally against the king or his government, or against the public peace and good order, they were at liberty, without waiting for any farther intelligence, to convey that in. 1*910 , formation to the court of king's bench by a *suggestion on record, and u s to carry on the prosecution in his majesty's name. But these informations (of every kind) are confined by the constitutional law to mere misdemeanors only: for, wherever any capital offence is charged, the same law
(a) 2 Hawk. P. C. 200. (b) 1 Show. 118.
(8) The time, unless otherwise expressly provided by statute relating to the particular case, is limited in the case of offences punishable on summary convietion, to six calendar months. 11 and 12 Vic. c. 43, s. 36.
(9) [The court will always take into consideration the whole of the circumstances of the charge before they lend their sanction to this extraordinary mode of prosecution They will observe the time of making the application, and whether a long interval has elapsed since the injury, and to what cause it may be fairly ascribed ; also the evidence on which the charge is founded, and weigh the probabilites which it seems to offer : they will also examine the character and motives of the applicant, at least his share in the matter before them : and they will look forward to the consequences of the measure they are requested to grant, in the peculiar situation of the defendant. 1 Bla. Rep. 542. In applications of this nature fur libels, the applicant must, unless the charge be general, show his innucence of the matter imputed to him. “See Dougl. 284, 387,588; 1 Burr. 402; 6 T. R. 294; 4 id. 285; 5 B. and A. 595; 1 D. and R. 197 ; 2 Chit. Rep. 163. In applications against magistrates, the applicant must directly impute corrupt motives for the misconduct complained of. 3 B. and A. 132.]
requires that the accusation be warranted by the oath of twelve men; before the party shall be put to answer it. And, as to those offences in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his majesty's court of king's bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment. But when the statute 3 Hen. VII, c. I, had extended the jurisdiction of the court of star-chamber, the members of which were the sole judges of the law, the fact, and the penalty; and when the statute 11 Hen. VII, c. 3, had permitted informations to be brought by any informer upon any penal statute, not extending to life or member, at the assizes or before the justices of the peace, who were to hear and determine the same according to their own discretion; then it was that the legal and orderly jurisdiction of the court of king's bench fell into disuse and oblivion, and Empson and Dudley (the wicked instruments of King Henry VII), by hunting out obsolete penalties, and this tyrannica' mode of prosecution, with other oppressive devices (c) continually harassed tire subject, and shamefully enriched the crown. The latter of these acts was so in indeed repealed by statute 1 Hen. VIII, c. 6, but the court of star-chamber coi tinued in high vigour, and daily increasing its authority, for more than a centur: longer; till finally abolished by statute 16 Car. I, c. 10.
Upon this dissolution the old common-law (dl) authority of the court of king's bench, as the custos morum of the nation being found necessary ti reside somewhere for the peace and good government of the kingdom, was again revived in *practice. (e) And it is observable, that in the same act of parliament which abolished the court of star-chamber, a conviction by information is expressly reckoned up, as one of the legal modes of conviction of such persons as should offend a third time against the provisions of that statute. (f) It is true Sir Matthew Hale, who presided in this court soon after the time of such revival, is said (9) to have been no friend to this method of prosecution : and, if so, the reason of such his dislike was probably the ill use which the master of he crown-office then made of his authority, by permitting the subject to be harass 'd with vexatious informations, whenever applied to by any malicious or revengefl prosecutor: rather than his doubt of their legality, or propriety upon urgen i occasions. (h) For the power of filing informations, without any control, then resided in the breast of the master: and, being filed in the name of the king, they subjected the prosecutor to no costs, though on trial they proved to be groundless. This oppressive use of them, in the times preceding the revolution, occasioned a struggle, soon after the accession of King William, (i) to procure a declaration of their illegality by the judgment of the court of king's bench. But Sir John Holt who then presided there, and all the judges, were clearly of opinion, that this proceeding was grounded on the common law, and could not be then impeached. And, in a few years afterwards, a more temperate remedy was applied in parliament, by statute 4 and 5 W. and M. c. 18, which enacts, that the clerk of the crown shall not file any information without express directions from the court of king's bench: and that every prosecutor, permitted to promote such information, shall give security by a recognizance of twenty pounds (which now seems to be too small a sum) to prosecute the same with effect: and to pay costs to the defendant, in case he be acquitted thereon, unless the judge, who tries the information, shall certify there was reasonable cause for filing it; and, at all events, to pay costs, unless *the information shall be tried within
[*312] a year after issue joined. But there is a proviso in this act, that it lo shall not extend to any other information than those which are exhibited by
(0)1 And. 157.
(d) 5 Mod. 464. lei Styl. Rep. 217, 245, Styl. Pract. Reg. tit. Information, p. 187, (edit. 1657). 2 Sid. 71. 1 Sid. 15%. ( stat. 16 Car. I, c. 10, 6.
(g) 5 Mon, 460.
Thi Saund. 301. 1 Sid. 174. i) M 1 W. and M, 5 Mod. 459. Comb). 141. Far. 361. 1 Show. 106.
the master of the crown-office: and consequently, informations at the king's own suit, filed by his attorney-general, are no way restrained thereby.
There is one species of informations, still further regulated by statute 9 Ann. C. 20, viz., those in the nature of a writ of quo warranto; which was shown, in the preceding book, (k) to be a remedy given to the crown against such as had usurpedo" intruded into any office or franchise. The modern information tends to the same purpose as the ancient writ, being generally made use of to try the civil rights of such franchises; though it is commenced in the same manner as other informations are, by leave of the court, or at the will of the attorney-general : being properly a criminal prosecution, in order to fine the defendant for his usurpation, as well as to oust him from his office; yet usally considered at present as merely a civil proceeding. (10)
These are all the methods of prosecution at suit of the king. There yet reinains another, which is merely at the suit of the subject, and is called an appeal.
IV. An appeal, in the sense wherein it is here used, does not signify any complaint to a superior court of an injustice done by au inferior one, which is the general use of the word; but it here means an original suit, at the time of its first commencement. (1) An appeal, therefore, when spoken of as a criminal prosecution, denotes an accusation by a private subject against another, for some heinous crime; demanding punishment on account of the particular injury suffered, rather than for the offence against the public. As this method of prosecution is still in force, I cannot omit to mention it: but as it is very little in use,
977 on account of the *great nicety required in conducting it, I shall treat of [ *313]
b y it very briefly; referring the student for more particulars to other more voluminous compilations. (m)
This private process, for the punishment of public crimes, had probably its original in those times when a private pecuniary satisfaction, called a weregild, was constantly paid to the party injured, or his relations, to expiate enormous offences. This was a custom derived to us, in common with other northern nations, (n) from our ancestors, the ancient Germans; among whom, according to Tacitus, (0)“luitur homicidiuin certo armentorum ac pecorum numero; reciptique satisfactionem universa domus.” (p. In the same manner by the Irish brehon law, in case of murder, the brehon or judge was used to compound between the murderer and the friends of the deceased who prosecuted him, by causing the malefactor to give unto them, or to the child or wife of bim that was slain, a recompense which they called an eriach. (@) And thus we find in our Saxon laws (particularly those of King Athelstan)(r) the several weregilds for homicide established in progressive order from the death of the ceorl or peasant, up to that of the king himself. (s) And in the laws of King Henry I, (t) we have an account of what other offences were then redeemable by weregild, and what were not so. (u) As therefore during the continuance of this custom, a process was certainly given, for recovering the weregild by the party to whom it was due; it
(1) See book III. page 262.
w It is from the French, appeller," the verb active, which signifies to call ipop, summon, or challengo one ; and not the verb nenter, which signifies the same as the onlinary sense of appel” in English. (m) 2 Hawk, P. C. ch. 23. (n) Stiernh. de jure Sueon, 1.3, c. 4.
(o) de M. G. c. 21. And in another place. (c. 12), Delictis, pro modo prenurum, equorum pecorumque numero convicti mulctantur. Pars mulctre regi vel civitati; purs ipsi qui vindicatur, vel propinquis ejus ersolvitur." (0) Spencer's State of Ireland 1. 1513, edit. Hughes.
(r) Judic. Civit. Lunul. Wilk. 71. (8) The weregild of a coorl was 266 thuysmas, that of the king 30,000; each thrysma being equal to about a shilling of our present money. The weregild of il subject was paid entirely to the relations of the party slain ; but that of the king was divided ; one-half being paid to the public, the other hall to the royal family.
(t) c. 12.
(u) in Turkey this principle is carried so far, that even murrier is never prosecuted by the oficers of the government, as with 113. It is the bus ness of the next relations, and them only, to revenge the slaughter of their kinsmen ; and if they rather choose (as they generally do, to compound the matter for money, nothing more is said about it. (Lady M. W. Montague, lett. 42.)
(10) Rex v. Francis, 2 T. R. 484, in which it was held that a new trial might be granted in these cases.
seems that, when *these offences by degrees grew no longer redeemable, ry the private process was still continued, in order to insure the infliction 1° of punishment upon the offender, though the party injured was allowed no pecuniary compensation for the offence.
But, though appeals were thus in the nature of prosecutions for some atrocious injury committed more immediately against an individal, yet it also was anciently permitted, that any subject might appeal another subject of high treason, either in the courts of common law, (w) or in parliament, or (for treasons comInitted beyond the seas) in the court of the high constable and marshal. The cognizance of appeals in the latter still continues in force; and so late as 1631 there was a trial by battle awarded in the court of chivalry, on such an appeal of treason : (x) but that in the first was virtually abolished (y) by the statutes 5 Edw. III, c. 9, and 25 Edw. III, c. 24, and in the second expressly by statute 1 Hen. IV. c. 14, so that the only appeals now in force for things done within the realm, are appeals of felony and mayhem.
An appeal of felony may be brought for crimes committed either against the parties themselves or their relations. The crimes against the parties themselves are larceny, rape and alson. And for these, as well as for 'mayhem, the persons robbed, ravished, maimed, or whose houses are burnt, may institute this private process. The only crime against one's relation, for which an appeal can be brought, is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation : but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confirmed, by an ordinance of King Henry the First, to the four nearest degrees of blood. (z.) It is given to the wife on account of the loss of her husband; therefore, if she marries again, before or pending her appeal, it is lost and gone; or, if she marries after judgment, she shall not demand execution. The heir, as was said, must also be heir male, and such a one as was the *next
[*315] heir by the course of the common law, at the time of the killing of the ancestor. But this rule hath three exceptions: 1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal: 2. If there be no wife, and the heir be accused of the murder, the person who, next to him, would have been heir male, shall bring the appeal: 3. If the wife kills her husband, the heir may appeal her of the death. And, by the statute of Gloucester, 6 Edw. I, c. 9, all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party: which seems to be only declaratory of the old common law; for in the Gothic constitutions we find the same “prescriptio annalis, quæ currit adversus actorem, sö de homicidu ei non constet intra annum a cada facta, nec quenquam interea arguat et accuset.” (a)
These appeals may be brought previous to an indictment: and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. In like manner as by the old Gothic constitution, if any offender gained a verdict in his favour, when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offence:(6) but, on the contrary, if he made his peace with the king, still he might be prosecuted at the suit of the party. And so, with us, if a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, still he ought not (in strictness) to go at large, but be imprisoned or let to bail till the year and day be past, by virtue of the statute 3 Hen. VII, c. 1, in order to be forthcoming to answer any appeal for the same felony, not having as yet been punished for it, though, if he hath been found guilty of manslaughter on an indictment, and hath had the benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed; for it is a maxim in law that, “nemo bis punitur pro eodem delicto." Before this statute was made, it was not usual to indict a man for homicide within the time limited for appeals; which produced very great inconvenience, of which more hereafter. (c) (w) Britt. c. 22. (r) By Donald lord Rea against Darid Ramser. Rushw.rol. 2. part 2, p. 112.) (y)i Hal. P. C. 349. (z) Mirr. c. 2, $7. (a) Stiernh. de jure Goth. 1. 3, c. 4. (b) Stieruh. de jure Goth. 1. 1, c. 5. (c) See page 335.