Front Page Titles (by Subject) CHAPTER XXIII.: OF THE SEVERAL MODES OF PROSECUTION. - Commentaries on the Laws of England in Four Books, vol. 2
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CHAPTER XXIII.: OF THE SEVERAL MODES OF PROSECUTION. - 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 THE SEVERAL MODES OF PROSECUTION.
**301]The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation.1 And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment.
I. A presentment, generally taken, is a very comprehensive term, including not only presentments properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation,(a) without any bill of indictment laid before them at the suit of the king: as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment(b) before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands and the like;2 and presentments of petty offences in the sheriff’s tourn or court-leet, whereupon the presiding officer may set a fine.3 Other inquisitions may be afterwards traversed and examined; as particularly the coroner’s *[*302inquisition of the death of a man when it finds any one guilty of homicide;4 for in such cases the offender so presented must be arraigned upon this inquisition and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.
II. An indictment(c) is a written accusation of one or more persons of a crime or misdemeanour, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which on the part of our lord the king shall then and there be commanded them.(d) They ought to be freeholders, but to what amount is uncertain;(e) which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described so early as the laws of king Ethelred.(f) “Exeant seniores duodecim thani, et præfectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare.” In the time of king Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably **303]found too large and inconvenient; but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes, and not to rest satisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.(g)
The grand jury are sworn to inquire only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter antiently carried, that where a man was wounded in one county and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them; but, by statute 2 & 3 Edw. VI. c. 24, he is now indictable in the county where the party died.5 And, by statute 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea or out of England, or vice versa, the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases; as, particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII. c. 13, 33 Hen. VIII. c. 23, 35 Hen. VIII. c. 2, and 5 & 6 Edw. VI. c. 11. And counterfeiters, washers, or minishers **304]of the current coin, together with all manner of felons and their accessories, may, by statute 26 Hen. VIII. c. 6, (confirmed and explained by 34 & 35 Hen. VIII. c. 26, §§ 75, 76,) be indicted and tried for those offences, if committed in any part(h) of Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where the king’s writ runneth: that is at present in the county of Hertford or Salop, and not, as it should seem, in the county of Chester or Monmouth; the one being a county palatine where the king’s writ did not run, and the other a part of Wales, in 26 Hen. VIII.(i) Murders, also, whether committed in England or in foreign parts,(k) may, by virtue of the statute 33 Hen. VIII. c. 23, be inquired of and tried by the king’s special commission in any shire or place in the kingdom. By statute 10 & 11 W. III. c. 25, all robberies and other capital crimes committed in Newfoundland may be inquired of and tried in any county in England. Offences against the black act, 9 Geo. I. c. 22, may be inquired of and tried in any county of England, at the option of the prosecutor.(l) So felonies in destroying turnpikes or works upon navigable rivers, erected by authority of parliament, may, by statutes 8 Geo. II. c. 20 and 13 Geo. III. c. 84, be inquired of and tried in any adjacent county. By statute 26 Geo. II. c. 19, plundering or stealing from any vessel in distress or wrecked, or breaking any ship contrary to 12 Anne, st. 2, c. 18,(m) may be prosecuted either in the county where the fact is committed or in any county next adjoining; and if committed in Wales, then in the next adjoining English county: by which is understood to be meant such English county as, by the statute 26 Hen. VIII. above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in Wales.(n) Felonies committed out of the realm, in burning or destroying the king’s ships, *[*305magazines, or stores, may, by statute 12 Geo. III. c. 24, be inquired of and tried in any county of England, or in the place where the offence is committed. By statute 13 Geo. III. c. 63, misdemeanours committed in India may be tried upon informations or indictments in the court of king’s bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But, in general, all offences must be inquired into as well as tried in the county where the fact is committed. Yet, if larceny be committed in one county and the goods carried into another, the offender may be indicted in either, for the offence is complete in both;(o) or he may be indicted in England for larceny in Scotland and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdom goods that have been stolen in another.(p) But for robbery, burglary, and the like, he can only be indicted where the fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction. And if a person be indicted in one county for larceny of goods originally taken in another, and be thereof convicted or stands mute, he shall not be admitted to his clergy, provided the original taking be attended with such circumstances as would have ousted him of his clergy by virtue of any statute made previous to the year 1691.(q)6
When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill “ignoramus,” or, we know nothing of it; intimating that, though the facts might possibly be true, that truth did not appear to them: but now they assert in English more absolutely “not a true bill,” or (which is the better way) “not found,” and then the party is discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then **306]endorse upon it “a true bill,” antiently “billa vera.” The indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree; for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree;(r) and the indictment, when so found, is publicly delivered into court.
Indictments must have a precise and sufficient certainty.7 By statute 1 Hen. V. c. 5, all indictments must set forth the Christian name, surname, and addition of the state and degree, mystery, town or place, and the county of the offender; and all this to identify his person.8 The time and place are also to be ascertained by naming the day and township in which the fact was committed; though a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment and the place to be within the jurisdiction of the court, unless where the place is laid not merely as a venue, but as part of the description of the fact.(s)9 But sometimes the time may be very material, where there is any situation in point of time assigned for the prosecution of offenders, as by the statute 7 Will. III. c. 3, which enacts that no prosecution shall be had for any of the treasons or misprisions therein mentioned, (except an assassination designed or attempted on the person of the king,) unless the bill of indictment be found within three years after the offence committed;(t) and in case of murder, the time of the death must be laid within a year and a day after the mortal stroke was given. The offence itself must also be set forth with clearness and certainty; and in some crimes particular words of art must be used, which are so appropriated by the law to express the precise idea which it entertains of the *[*307offence, that no other words, however synonymous they may seem, are capable of doing it. Thus, in treason the facts must be laid to be done “treasonably and against his allegiance,” antiently “proditorie et contra ligeantiæ suæ debitum,” else the indictment is void. In indictments for murder it is necessary to say that the party indicted “murdered,” not “killed,” or “slew,” the other; which, till the late statute, was expressed in Latin by the word “murdravit.”(u) In all indictments for felonies the adverb “feloniously,” “felonice,” must be used; and for burglaries, also, “burglariter,” or, in English, “burglariously:” 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;10 in homicide of all sorts it is necessary, as the weapon with which it is committed is forfeited to the king as a deodand.11
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 **308]Danish law, he might be taken and hanged upon the spot, without accusation or trial.(w) But this proceeding was taken 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 are a sort of qui tam actions, (the nature of which was explained in a former book,)(z) 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 such prosecution be had after the expiration of two years from the commission of the offence.12
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-general, are properly such **309]enormous misdemeanours as peculiarly tend 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 misdemeanours, riots, batteries, libels, and other immoralities of an atrocious kind,(a) not peculiarly tending to disturb the government, (for those are left to the care of the attorney-general,) but which, on account of their magnitude or pernicious example, deserve the most public animadversion.13 And when an information is filed, either thus, or by the attorney-general 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.14
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 antient as the common law itself.(b) 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 misdemeanour, either personally against the king or his government, or against the public peace and good order, they were at liberty, without waiting for any further intelligence, to convey that information to the court of king’s bench by a *[*310suggestion on record, and to carry on the prosecution in his majesty’s name. But these informations (of every kind) are confined by the constitutional law to mere misdemeanours only; for, whenever any capital offence is charged, the same law 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. 1 had extended the jurisdiction of the court of starchamber, 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 tyrannical mode of prosecution, with other oppressive devices,(c) continually harassed the subject and shamefully enriched the crown. The latter of these acts was soon indeed repealed, by statute 1 Hen. VIII. c. 6; but the court of starchamber continued in high vigour, and daily increasing its authority, for more than a century longer, till finally abolished by statute 16 Car. I. c. 10.
Upon this dissolution, the old common-law(d) authority of the court of king’s bench as the custos morum of the nation, being found necessary to reside somewhere, for the peace and good government of the kingdom, was again revived in **311]practice.(e) And it is observable that in the same act of parliament which abolished the court of starchamber, 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(g) 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 the crown-office then made of his authority by permitting the subject to be harassed with vexatious informations, whenever applied to by any malicious or revengeful prosecutor, rather than his doubt of their legality or propriety upon urgent 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 & 5 W. and M. c. 18, which enacts that the clerk of the crown shall not file any information without express direction 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 **312]the information shall be tried within a year after issue joined. But there is a proviso in this act that it shall not extend to any other informations than those which are exhibited by 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 Anne, 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 usurped or intruded into any office or franchise. The modern information tends to the same purpose as the antient 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 usually considered at present as merely a civil proceeding.15
These are all the methods of prosecution at the suit of the king. There yet remains 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 an inferior one, which is the general use of the word; but it here means an original suit at the time of its first commencement.(l) 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, on account of the *[*313great nicety required in conducting it, I shall treat of 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 antient Germans; among whom, according to Tacitus,(o) “luitur homicidium certo armentorum ac pecorum numero; recipitque 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 him that was slain, a recompense which they called an eriach.(q) 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 seems that, when *[*314these offences by degrees grew no longer redeemable, the private process was still continued, in order to insure the infliction 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 individual, yet it also was antiently 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 committed 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 battel 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 arson. And for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burned may institute this private process. The only crime against one’s relations 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 confined 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 **315]next 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 Glocester, 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 “præscriptio annalis, quæ currit adversus actorem, si de homicida ei non constet intra annum a cæde facta, nec quenquam interea arguat et accuset.”(a)
These appeals may be brought previous to any 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;(b) 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)
**316]If the appellee be acquitted, the appellor (by virtue of the statute of Westm. 2, 13 Edw. I. c. 12) shall suffer one year’s imprisonment, and pay a fine to the king, besides restitution of damages to the party for the imprisonment and infamy which he has sustained; and if the appellor be incapable to make restitution, his abettors shall do it for him and also be liable to imprisonment. This provision, as was foreseen by the author of Fleta,(d) proved a great discouragement to appeals; so that thenceforward they ceased to be in common use.
If the appellee be found guilty, he shall suffer the same judgment as if he had been convicted by indictment, but with this remarkable difference:—that on an indictment, which is at the suit of the king, the king may pardon and remit the execution; on an appeal, which is at the suit of a private subject, to make an atonement for the private wrong, the king can no more pardon it than he can remit the damages recovered on an action of battery.(e) In like manner as while the weregild continued to be paid as a fine for homicide it could not be remitted by the king’s authority.(f) And the antient usage was, so late as Henry the Fourth’s time, that all the relations of the slain should drag the appellee to the place of execution;(g) a custom founded upon that savage spirit of family resentment which prevailed universally through Europe after the irruption of the northern nations, and is peculiarly attended to in their several codes of law, and which prevails even now among the wild and untutored inhabitants of America; as if the finger of nature had pointed it out to mankind in their rude and uncultivated state.(h) However, the punishment of the offender may be remitted and discharged by the concurrence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may *[*317discharge an appeal;(i) “nam quilibet potest renunciare juri pro se introducto.”16
These are the several methods of prosecution instituted by the laws of England for the punishment of offences, of which that by indictment is the most general. I shall therefore confine my subsequent observations principally to this method of prosecution; remarking, by the way, the most material variations that may arise from the method of proceeding by either information or appeal.
[1 ] It may here be useful briefly to consider the time when the prosecution should be commenced. The habeas corpus act provides that a person committed for treason or felony must be indicted in the ensuing term or sessions, or the party must be bailed, unless it be shown upon oath that the witnesses for the prosecution could not be produced at the preceding session. 31 Car. II. c. 2, s. 7. See, accordingly, 2 R. S. 737, 28, &c. This regulation applies, however, only to persons actually confined upon suspicion, and is solely intended to prevent the protracting of arbitrary imprisonment; so that it does not preclude the crown from preferring an indictment at any distance of time from the actual perpetration of the offence, unless some particular statute limits the time of prosecuting.
There is no general statute of limitations applicable to criminal proceedings. 2 Hale, 158. Lieutenant-colonel Wall was tried and executed for a murder committed twenty years before. And it has been repeatedly held that no length of time can legalize a public nuisance, although it may afford an answer to an action of a private individual. 7 East, 199; ante, 167, note 12.—Chitty.
[(a) ] Lamb. Eirenarch. l. 4, c. 5.
[(b) ] 2 Inst. 739.
[2 ] But such an inquisition is now considered traversable. 1 Saund. 363, note 1. Impey’s Off. Cor. 437.—Chitty.
[3 ] There is some inaccuracy in this statement. An inquisition finding that a man was felo de se cannot of course be traversed by the individual; but it may be removed into the king’s bench by certiorari and then traversed by the executors or administrators of the deceased. Toomes vs. Etherington, 1 Saund. Rep. 363, n. (1), ed. 1824. As to the flight of persons accused of felony, I am not aware that this was ever made a substantive matter of inquiry distinct from the trial of the felony itself, (see post, 387;) and, as that trial could only be in the presence of the party accused, it was then the regular verdict of a jury after an open trial, and not a case in point. The coroner, indeed, holding an inquisition on the death of a person, may find that he was murdered by A. B. and that A. B. has fled for it; and the authorities all agree that this latter part of the finding is not traversable, though it is observed that no adequate reason for this distinction is to be found in the books. This probably was the flight which the author intended to mention. With respect to deodands, there is no mode, indeed, by which the lord of the franchise can quarrel with the finding of the jury, so as to increase the value they have affixed, but the court will interfere to diminish that value, (Foster, 266;) and therefore it must be inferred that the finding is not absolutely conclusive.
And lastly, as to presentments of petty offences in the town or leet, lord Mansfield has said that it cannot be true that they are not traversable anywhere, (Rex vs. Roupell, Cowp. 459;) and the law seems to be that before the fine is estreated and paid, though not afterwards, the presentment may be removed by certiorari into the court of King’s Bench and traversed there. Rex vs. Heaton, 2 T. R. 184.
Upon the whole, it may be laid down generally that, with the exception of flight on the death of a man, no finding of an inquisition can be conclusive on a party who has had no opportunity of vindicating his rights before the jury; while there are cases in which a party who has voluntarily foregone that right in one stage may yet traverse the finding in some future stage. As when, upon an inquiry by the sheriff under a writ of extent, the jury find certain goods to be the goods of A. B., and that finding is returned to the court of Exchequer, C. D., who claims the goods, and might have done so, but neglected to do so before the sheriff, may yet traverse the finding in the court above.—Coleridge.
[4 ] Upon this inquisition the party accused may be tried without the intervention of the grand jury, (2 Hale, 61. 3 Camp. 371. 2 Leach, 1095. Russ. & R. C. C. 240, S. C.;) and if an indictment be found for the same offence, and the defendant be acquitted on the one, he must be arraigned on the other,—to which he may, however, effectually plead his former acquittal. 2 Hale, 61.
Verdict in an Action.—There is also a mode in which a party may be put on his trial without any written accusation, viz., the verdict of a jury in a civil cause. 2 Hale, 150. 4 T. R. 293. 3 Esp. 134. Thus, in an action for taking away goods, if the jury found that they were taken feloniously, the verdict served also as an indictment. 2 Hale, 151. Hawk. b. 2, c. 15, s. 6. Com. Dig. Indictment, C. Bac. Abr. Indictment, B. 5. And at the present day, in an action for slander, in which the plaintiff is charged with a criminal offence, and the defendant justifies, if the jury find that the justification is true, the plaintiff may be immediately put upon his trial for the crime alleged against him, without the intervention of a grand jury. 5 T. R. 293. But the verdict must be found in some court which has competent jurisdiction over criminal matters, or otherwise it seems to have but little force. 2 Hale, 151. Hawk. b. 2, c. 25, s. 6. An affidavit taken at nisi prius on a trial may also be received by the court of King’s Bench as the foundation of a criminal information against another. T. R. 285.—Chitty.
[(c) ] See Appendix, 1.
[(d) ] 2 Hal. P. C. 154.
[(e) ] Ibid. 155.
[(f) ] Wilk. LL. Angl. Sax. 117.
[(g) ] State Trials, iv. 183.
[5 ] By stat. 7 Geo. IV. c. 64, this statute was repealed; and it is enacted by s. 12 that when any felony or misdemeanour shall be begun in one county and completed in another, or shall be committed on the boundary or boundaries of two or more counties, or within five hundred yards thereof, it may be tried and punished in either.—Stewart.
[(h) ] Stra. 533. 3 Mod. 134.
[(i) ] See Hardr. 66.
[(k) ] Ely’s case, at the Old Bailey, Dec. 1720. Roache’s case, Dec. 1775.
[(l) ] So held by all the judges, H. 11 Geo. III. in the case of Richard Mentis, on a case referred from the Old Bailey.
[(m) ] See page 245.
[(n) ] At Shrewsbury Summer Assizes, 1774, Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It was moved in arrest of judgment that Chester, and not Salop, was the next adjoining English county; but all the judges (in Mich. 15 Geo. III.) held the prosecution to be regular.
[(o) ] 1 Hal. P. C. 507.
[(p) ] Stat. 13 Geo. III. c. 31.
[(q) ] Stat. 25 Hen. VIII. c. 3. 3 W. and M. c. 9.
[6 ] The law respecting venue in criminal prosecutions has been recently revised and simplified, and is now as follows:—
As to murder. By 9 Geo. IV. c. 31, s. 7, if any British subject shall be charged in England with any murder or manslaughter, or with being accessory before the fact to any murder or manslaughter, committed on land out of the United Kingdom, whether within the king’s dominions or without, any justice of the county or place where the person so charged shall be may take cognizance of the charge, and proceed therein as if it had been committed within the limits of his ordinary jurisdiction; and if any person so charged shall be committed for trial or admitted to bail, a commission shall be directed to such persons, and into such county or place, as shall be appointed by the lord chancellor, for the speedy trial of any such offender; and such persons shall have power to hear and determine all such offences, within the county or place limited in their commission, by a jury of such county or place, in the same manner as if the offences had been actually committed in such county or place; and, by s. 8, where any person, being feloniously struck, poisoned, or hurt, upon the sea, or at any place out of England, shall die of such stroke, &c. in England, or vice versâ, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or manslaughter, or being accessory before the fact to murder, or after the fact to murder or manslaughter may be tried and punished in the county or place in England in which such death, stroke, &c. shall happen, in the same manner in all respects as if such offence had been wholly committed in that county or place.
As to offences committed on the borders of counties. By 7 Geo. IV. c. 64, s. 12, where any felony or misdemeanour shall be committed on the boundary or boundaries of two or more counties, or within five hundred yards thereof, or shall be begun in one county and completed in another, every such felony or misdemeanour may be tried and punished in any of the said counties in the same manner as if it had been actually and wholly committed therein.
As to offences committed on persons or property in coaches or vessels. By 7 Geo. IV. c. 64, s. 13, where any felony or misdemeanour shall be committed on any person, or on or in respect of any property in or upon any coach, wagon, cart, or other carriage whatever, employed in any journey, or on board any vessel whatever employed on any voyage upon any inland navigation, such felony or misdemeanour may be tried and punished in any county through any part whereof such coach, &c. or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanour shall have been committed, in the same manner as if it had been actually committed in such county; and where any part of any highway or navigation shall constitute the boundary of any two counties, such felony or misdemeanour may be tried and punished in either of the said counties through, or adjoining to, or by the boundary of any part whereof such coach, &c. or vessel shall have passed in the course of the journey or voyage during which such felony or misdemeanour shall have been committed, in the same manner as if it had been actually committed in such county.
As to larceny generally. By the Larceny Act, (7 & 8 Geo. IV. c. 29, s. 76,) if any person, having feloniously taken any property in any one part of the United Kingdom, shall afterwards have it in his possession in any other part, he may be indicted for larceny in that part where he shall so have such property in his possession, as if he had actually stolen it there; and if any person having knowingly received, in any one part of the United Kingdom, any stolen property which shall have been stolen in any other part, he may be indicted for such offence in that part where he shall so receive such property, as if it had been originally stolen in that part.
As to accessories. By 7 Geo. IV. c. 64, s. 9, accessories before the fact to any felony may be tried in any court that has jurisdiction to try the principal offender, although the offence of such accessories may be committed on the high seas, or on land, within or without the king’s dominions; and if the principal offence is committed in one county and the other offence in another, such accessories may be tried in either; and, by s. 10, a similar provision is made with respect to accessories after the fact to felony.
As to treasons. By 35 Hen. VIII. c. 2, (which is not repealed by 1 & 2 P. and M. c. 10, see 1 East, P. C. 103,) all treasons or misprisions of treason committed out of the realm may be tried in the court of King’s Bench by a jury of the county in which the court sits, or by a special commission in any county in England. See Chit. C. L. 188.
An indictment for bigamy may, by 9 Geo. IV. c. 31, s. 22, be tried in the county where the offender is apprehended or is in custody, the same as if the offence had been actually committed there.
In an indictment for a libel the venue must be laid in the county where the publication took place.
Indictments for offences against the customs and excise may be tried in any county of England. See 6 Geo. IV. c. 108, ss. 74 & 78, and 7 & 8 Geo. IV. c. 53, s. 43.
Offences committed in a county of a city or town may be tried in the county at large. See 38 Geo. III. c. 52; 51 Geo. III. c. 100; 60 Geo. III. c. 4; 1 Geo. IV. c. 4. If the indictment states the felony to have been committed in the county at large, and it was committed in the county of a city or town, this is bad. Rex vs. Mellor, R. & R. C. C. 144. But if the offence be properly laid in the county of a town, and the indictment is preferred in the county at large, it need not be averred that this is the next adjoining county to the county of the town. Rex vs. Goff, id. 179. The 26 Hen. VIII. c. 6, s. 6, which makes felonies in Wales triable in the next English county, extends to felonies created since that statute. Rex vs. Wyndham, id. 197.—Chitty.
[(r) ] 2 Hal. P. C. 161.
[7 ] The following general rules as to the form of the indictment may be found useful. The indictment must state the facts of the crime with as much certainty as the nature of the case will admit. Cowp. 682. 5 T. R. 611-623. Therefore an indictment charging the defendant with obtaining money by false pretences, without stating what were the particular pretences, is insufficient. 3 T. R. 581. The cases of indictment for being a common scold or barretor, or for keeping a disorderly house, or for conspiracy, may be considered as exceptions to the general rule. 2 T. R. 586. 1 T. R. 754. 2 B. & A. 205. And an indictment for endeavouring to incite a soldier to commit an act of mutiny, or a servant to rob his master, without stating the particular means adopted, may also be considered as an exception. 1 B. & P. 180.
The indictment ought to be certain to every intent and without any intendment to the contrary. Cro. Eliz. 490. Cro. Jac. 20. But this strictness does not so far prevail as to render an indictment invalid in consequence of the omission of a letter which does not change the word into another of different signification, as undertood for understood, and recevd for received, (1 Leach, 134, 145;) and if the sense be clear, nice objections ought not to be regarded, (5 East, 259;) and in stating mere matter of inducement, not so much certainty is required as in stating the offence itself. 1 Vent. 170. Com. Dig. Indictment, G. The charge must be sufficiently explicit to support itself; for no latitude of intention can be allowed to include any thing more than is expressed. 2 Burr. 1127. 2 M. & S. 381. And every crime must appear on the face of the record with a scrupulous certainty, (Cald. 187;) so that it may be understood by every one, alleging all the requisites that constitute the offence: and that every averment must be so stated that the party accused may know the general nature of the crime of which he is accused, and who the accusers are, whom he will be called upon to answer, (1 T. R. 69;) and as a branch of this rule it is to be observed that in describing some crimes technical phrases and expressions are required to be used to express the precise idea which the law entertains of the offence. See the instances in the text. The offence must be positively charged, and not stated by way of recital: so that the words “that whereas” prefixed will render it invalid. 2 Stra. 900, n. 1. 2 Lord Raym. 1363. Stating an offence in the disjunctive is bad. 2 Stra. 901, 200; and see further, 1 Chit. C. L. 2d ed. 236. Repugnancy in a material matter may be fatal to the indictment. 5 East, 254. But though the indictment must in all respects be certain, yet the introduction of averments altogether superfluous and immaterial will seldom prejudice. For if the indictment can be supported without the words which are bad, they may, on arrest of judgment, be rejected as surplusage. 1 T. R. 322. 1 Leach, 474. 3 Stark. 26. And see further, as to repugnancy and surplusage, 1 Chit. C. L. 2d ed. 332, 338, &c.
Presumptions of law need not be stated, (4 M. & S. 105. 2 Wils. 147;) neither need facts of which the court will ex officio take notice. It is not necessary to state a conclusion of law resulting from the facts of a case: it suffices to state the facts and leave the court to draw the inference. 2 Leach, 941. Neither is it necessary to state mere matter of evidence which the prosecutor proposes to adduce, unless it alters the offence: for if so, it would make the indictment as long as the evidence. 1 Stra. 139, 140. Forst. 194. 2 B. & A. 205. In general, all matters of defence must come from the defendant, and need not be anticipated or stated by the prosecutor. 5 T. R. 84. 2 Leach, 580. 2 East, 19. And it is never necessary to negative all the exceptions which, by some other statute than that which creates the offence, might render it legal; for these must be shown by defendant for his own justification. 2 Burr. 1036. 1 Bla. Rep. 230. Facts which lie more particularly within the defendant’s than the prosecutor’s knowledge need not be shown with more than a certainty to a common intent. 5 T. R. 607. Hawk. b. 2, c. 25, s. 112. If notice be necessary to raise the duty which the defendant is alleged to have broken, it should be averred; but where knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never necessary either to state or prove it. 5 T. R. 621. If a request or demand is necessary to complete the offence, it must be stated in the indictment. 8 East, 52, 53. 1 T. R. 316. Cald. 554. Where an evil intent accompanying an act is necessary to constitute such act a crime, the intent must be alleged in the indictment and proved. 2 Stark. 245. R. & R. C. C. 365. 1 Hale, 561. 2 East, P. C. 514, 515. 2 R. & R. C. C. 317. Indictments must be in English. 4 Geo. II. c. 26. 6 Geo. II. c. 6. But if any document in a foreign language, as a libel, be necessarily introduced, it should be set out in the original tongue and then translated, showing its applications, (6 T. R. 162. 7 Moore, 1;) but it has been said to be both needless and dangerous to translate it. 1 Saund. 242, n. 1. By the same acts, statutes 4 Geo. II. c. 26, and 6 Geo. II. c. 14, all indictments must be in words at length; and therefore no abbreviations can be admitted. 2 Hale, 170, n. g. Nor can any figures be allowed in indictments, but all numbers must be expressed in words at length; but to this rule there is an exception in case of forgery and threatening letters, when a facsimile of the instrument forged must be given in the indictment. 2 Hale, 170, 146.
As to the insertion of several counts in an indictment, see 1 Chit. C. L. 248 to 250; and as to when part of a count may be found, id. 250 to 252. As to the joinder of several offences, id. 253 to 256. As to variances, id. 2d ed. 293, 294. As to the amendment of indictments, id. 297 to 298; and when an indictment may be quashed, id. 299 to 304. As to the power of a court of equity to stay indictment, id. 2d ed. 304. As to when an action, as well as an indictment, may be brought, see ante, 6.—Chitty.
[8 ] But, by stat. 7 Geo. IV. c. 64, s. 19, it was enacted that no indictment should be abated by reason of any dilatory plea of misnomer, or of want of addition, or of the wrong addition, of the party offering such plea, but the court, if satisfied by affidavit or otherwise of the truth of such plea, might cause the indictment to be amended. And the 14 & 15 Vict. c. 100, s. 24 provides that no indictment shall be held insufficient (inter alia) by reason that any person mentioned in the indictment is designated by a name or office or other descriptive appellation instead of his proper name, nor for want of or imperfection in the addition of any defendant.—Stewart.
[(s) ] 2 Hawk. P. C. 435.
[9 ] By 7 Geo. IV. c. 64, s. 20, “no judgment, upon any indictment or information, for any felony or misdemeanour, whether after verdict or outlawry, or by confession, default, or otherwise, shall be stayed or reversed for want of the averment of any matter unnecessary to be proved; nor for the omission of the words ‘as appears by the record,’ or ‘with force and arms,’ or ‘against the peace;’ nor for the insertion of the words ‘against the form of the statute,’ instead of ‘against the form of the statutes,’ or vice versâ; nor for that any person or persons mentioned in the indictment or information is or are designated by a name of office, or other descriptive appellation, instead of his, her, or their proper name or names; nor for omitting to state the time at which the offence was committed, in any case where time is not of the essence of the offence; nor for stating the time imperfectly; nor for stating the offence to have been committed on a day subsequent to the finding of the indictment or exhibiting the information, or on an impossible day, or on a day that never happened; nor for want of a proper or perfect venue, where the court shall appear by the indictment or information to have had jurisdiction over the offence.” The objections enumerated in this clause are no longer available, either in arrest of judgment or by writ of error, because it enacts that judgment shall not be stayed, which applies to motions in arrest of judgment, or reversed, which applies to writs of error. But it seems that any of these objections will still be available on demurrer, where the prisoner prays judgment in his favour, and if his demurrer is allowed, judgment is neither stayed nor reversed, but given in his favour. See further, on this subject, Car. C. L. 46, et seq., and the cases there cited.
If the name of a prisoner is unknown and he refuse to disclose it, an indictment against him as a person whose name is to the jurors unknown, but who is personally brought before the jurors by the keeper of the prison, will be sufficient. Rex vs.—, R. & R. C. C. 489. But an indictment against him as a person to the jurors unknown, without something to ascertain whom the grand jury meant to designate, is insufficient. Id. ibid.—Chitty.
But now also, by stat. 14 & 15 Vict. c. 100, s. 24, no indictment shall be held insufficient for omitting to state the time at which the offence was committed in any case where time is not of the essence of the offence, nor for 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.—Stewart.
[(t) ] Fost. 249.
[(u) ] See book iii. page 321.
[(v) ] 5 Rep. 122.
[10 ] There are some recent enactments, respecting indictments for larceny, which it seems important to notice here. By 7 Geo. IV. c. 64, s. 14, “to remove the difficulty of stating the names of all the owners of property in the case of partners and other joint owners,” the property of partners may be laid in any one partner by name, and another, or others. By s. 15, property belonging to counties, &c. may be laid in the inhabitants without naming them. By s. 16, property ordered for the use of the poor of parishes, &c. may be laid in the overseers without naming them; and materials, &c. for repairing highways may be laid to be the property of the surveyor without naming him. By s. 17, property of turnpike-trustees may be laid in the trustees without naming them. And by s. 18, property under commissioners of sewers may be laid in the commissioners without naming them. By 7 & 8 Geo. IV. c. 29, s. 21, in indictments for stealing records, &c. it is unnecessary to allege either that the article is the property of any person, or that it is of any value. By s. 22, a similar provision is made respecting wills. By s. 44, where the materials therein enumerated are fixed in any square, street, or other like place, it is unnecessary to allege them to be the property of any person. And, by s. 46, in indictments against tenants and lodgers for stealing property from houses or apartments let to them, the property may be laid either in the owner or person letting to hire. For the cases bearing upon this subject, see Car. C. L. 25, et seq.; Col. Crim. Stat. 329; and see a full and able summary of the law of larceny, id. 325, 343.—Chitty.
[11 ] It is to be observed that, by stat. 11 & 12 Vict. c. 46, any court of oyer and terminer and general gaol-delivery (extended to courts of quarter sessions by 12 & 13 Vict. c. 45) may cause the indictment or information for any offence whatever, in case of any variance between any matter in writing or in print produced in evidence, and the recital or setting forth thereof upon the record, to be forthwith amended, and thereupon the trial shall proceed as if no such variance had appeared. Still further powers of amendment in matters of variance are conferred by stat. 14 & 15 Vict. c. 100, s. 1.—Stewart.
[(w) ] Stiernhook, de jure Sucon. l. 3, c. 5.
[(x) ] 2 Hal. P. C. 14.
[(y) ] Lord Kaims, i. 331.
[(z) ] See book iii. page 162.
[12 ] This statute is so far repealed, by the 11 & 12 Vict. c. 43, s. 36, that where no time is specially limited for laying any such information in the act of parliament relating to each particular case, the information (if it be for an offence punishable by justices upon summary conviction) must be laid within six calendar months from the time when the matter of such information arose.—Stewart.
[(a) ] 2 Hawk. P. C. 260.
[13 ] And see further, as to for what causes the court will grant this information, 1 Chitt. C. L. 2d ed. 849 to 856. 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 probabilities 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 for libels, the applicant must, unless the charge be general, show his innocence of the matter imputed to him. See Doug. 284, 387, 588. 1 Burr. 402. 6 T. R. 294. 4 id. 285. 5 B. & A. 595. 1 D. & R. 197. 2 Chitt. Rep. 163. In applications against magistrates, the applicant must directly impute corrupt motives for the misconduct complained of. 3 B. & A. 432.—Chitty.
[14 ] If an information or an indictment for a misdemeanour removed into the court of King’s Bench by certiorari be not of such importance as to be tried at the bar of the court, it is sent down by writ of nisi prius into the county where the crime is charged to have been committed, and is there tried by a common or special jury, like a record in a civil action; and if the defendant is found guilty he must afterwards receive judgment from the King’s Bench. But where an indictment for treason or felony is removed by certiorari, the law upon the subject will be found fully stated by lord Hale in the two following sections. 2 P. C. 41.
“As to an indictment of felony or treason removed out of the county by certiorari, and the party pleading, the record is sent down by nisi prius to be tried. The judges of nisi prius may upon that record proceed to trial and judgment and execution, as if they were justices of gaol-delivery, by virtue of the statute of 14 Hen. VI. cap. 1.
“But if there were any question upon that statute, yet the statute of 6 Hen. VIII. cap. 6, which extends to all justices and commissioners, as well of those of gaol-delivery and of the peace, enables the court of King’s Bench to send to them the very record itself, and by a special writ or mandate to command them to proceed to trial and judgment, upon such issue joined, as they may command the justices before whom the indictment was taken to proceed to hear and determine the same as if no such issue were joined.” See Sir Myles Stapleton’s case, Raym. 376.
If the treason of felony is to be tried at nisi prius under the 14 Hen. VI. c. 1, then the court sends a transcript of the record, and not the record itself. 2 Hal. P. C. 3. 4 Co. 74.—Christian.
[(b) ] 1 Show. 118.
[(c) ] 1 And. 167.
[(d) ] 5 Mod. 464.
[(e) ] Styl. Rep. 217, 245. Styl. Pract. Reg. tit. Information, page 187, edit. 1657. 2 Sid. 71. 1 Sid. 152.
[(f) ] Stat. 16 Car. I. c. 10, 6.
[(g) ] 5 Mod. 460.
[(h) ] 1 Saund. 301. 1 Sid. 174.
[(i) ] M. 1 W. and M. 5 Mod. 459. Comb. 141. Far. 361. 1 Show. 106.
[(k) ] See book iii. page 262.
[15 ] Because an information in the nature of a quo warranto is considered merely as a civil proceeding, the court of King’s Bench will grant a new trial, though the verdict should have been given for the defendant. 2 T. R. 484.—Christian.
[(l) ] It is derived from the French “appeler,” the verb active, which signifies to call upon, summon, or challenge one, and not the verb neuter, which signifies the same as the ordinary sense of “appeal” English.
[(m) ] 2 Hawk. P. C. c. 23.
[(n) ] Stiernhook, de jure Sueon. l. 3, c. 4.
[(o) ]De Mor. Germ. c. 21.
[(p) ] And in another place, (c. 12,) “Delictis, pro modo pœnarum, equorum pecorumque numero convicti mulctantur. Pars mulctæ regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus exsolvitur.”
[(q) ] Spenser’s State of Ireland, p. 1513, edit. Hughes.
[(r) ]Judic. Civit. Lund. Wilk. 71.
[(s) ] The weregild of a ceorl was 266 thrysmas, that of the king 30,000; each thrysma being equal to about a shilling of our present money. The weregild of a 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 to the royal family.
[(t) ] C. 12.
[(u) ] In Turkey this principle is carried so far that even murder is never prosecuted by the officers of the government, as with us. It is the business 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. Montagu, lett. 42.
[(w) ] Britt. c. 22.
[(x) ] By Donald lord Rea against David Ramsey. Rushw vol. ii. part 2, p. 112.
[(y) ] 1 Hal. P. C. 349.
[(z) ] Mirr. c. 2, 7.
[(a) ] Stiernh. de jure Goth. l. 3, c. 4.
[(b) ] Ibid. l. 1, c. 5.
[(c) ] See page 335.
[(d) ]L. 1, c. 34, 48.
[(e) ] 2 Hawk. P. C. 392.
[(f) ]LL. Edm. 3.
[(g) ] M. 11 Hen. Iv. 12. 3 Inst. 131.
[(h) ] Robertson, Cha. V. i. 45.
[(i) ] 1 Hal. P. C. 9.
[16 ] These appeals had become nearly obsolete; but the right still existing was claimed, and in part exercised, in the year 1818, by William Ashford, eldest brother and heir-at-law of Mary Ashford, who brought a writ of appeal against Abraham Thornton for the murder of his sister. Thornton had been tried at the Warwick Summer Assizes, 1817, for the murder, and acquitted, though under circumstances of strong suspicion. The appellee, when called upon to plead, pleaded “not guilty, and that he was ready to defend himself by his body;” and, taking his glove off, he threw it upon the floor of the court. A counterplea was afterwards delivered in by the appellant, to which there was a replication. A general demurrer followed, and joinder thereon. See a full detail of the proceedings in that singular case, in the report of it under the name of Ashford vs. Thornton, 1 B. & A. 405. It was held in that case that where in an appeal of death the appellee wages his battle, the counterplea, to oust him of this mode of trial, must disclose such violent and strong presumptions of guilt as to leave no possible doubt in the minds of the court, and therefore that a counterplea which only stated strong circumstances of suspicion was insufficient. It was also held that the appellee may reply fresh matter tending to show his innocence,—as an alibi, and his former acquittal of the same offence on an indictment. But it was doubted whether when the counterplea is per se insufficient, or where the replication is a good answer to it, the court should give judgment that the appellee be allowed his wager of battle, or that he go without day. Therefore, the appellant praying no further judgment, the court, by consent of both parties, or dered that judgment should be stayed in the appeal and that the appellee should be discharged. This case, the first of the kind that had occurred for more than half a century, (see Bigby vs. Kennedy, 5 Burr. 2643, 2 W. Bl. 713. Rex vs. Taylor, 5 Burr. 2793. Smith vs. Taylor, id. ibid,—the last cases upon the subject, where the mode of proceeding is detailed at large,) led to the total abolition of appeals of murder, as well as of treason, felony, or other offences, together with wagers of battle, by the passing of the statute 59 Geo. III. c. 46.—Chitty.