"ravished," is necessary, and must not be expressed by any periphrasis; in order to render the crime certain. So in larcinies 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.20 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 larcinies this is necessary, that it may appear whether it be grand or petit larciny; and whether entitled or not to benefit of clergy; in homicide of all sorts it is necessary; as the weapon with which it is committed is forfeited to the king as a deodand. 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 [308] 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. 22 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 of fence; 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. 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, ▼ 5 Rep. 122. w Stiernh. de jure Suson, l. 3. c. 5. x 2 Hal. P. C. 14. z See Book III. page 162. (20) And see further as to technical phrases, 1 Chit. C. L. 2 ed. 239 to 245. (21) As to the statement of value, quantity, and kind of property, see 1 Chit. C. L. 2 ed. 235 to 238. (22) As to criminal informations in general, see Hawk. b. 2. c. 84.; Com. Dig. Information; Bac. Áb. Information; 2 Wooddeson, 560 to 564.; Williams J. Information; Dick, J. Information; 1 Chit. C. L. 2 ed. 841 to 877. 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 enormous [309] misdemesnors, as peculiarly tend to disturb or endanger his go vernment, 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 to the care of the attorney-general), but which, on account of their magnitude or pernicious example, deserve the most public animadversion." 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.25 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. (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 (23) It must be upon oath. 4 & 5 W. & M. c. 18. (24) And see further as to for what causes the court will grant this information, 1 Chit. C. L. 2 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, shew his innocence of the matter imputed to him. See Dougl. 284. 387. 588. 1 Burr. 402. 6 T. R. 294. 4 id. 285. 5 B. & A. 595. 1 D. & R. 197. 2 Chit. Rep. 165. In applications against magistrates, the applicant must directly impute corrupt motives for the misconduct complained of. 3 B. & A. 432. Chitty. (25) If an information, or an indictment for a misdemeanor 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 it 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 court of 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 2 P. C. 41. If the treason or 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 Hat. P. C. 3. 4 Co. 74. Chitty. officers were otherwise sufficiently assured that a man had committed a gross misdemeanor, either personally 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 information to the court of king's bench by a suggestion on record, and to carry [310] on the prosecution in his majesty's name. But these informations (of every kind) are confined by the constitutional law to mere misdemesnors 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 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 assises 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) contibually harassed the subject, and shamefully enriched the crown. The latter of these acts was soon indeed repealed by the statute 1 Hen. VIII. c. 6. but the court of star chamber 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 of 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 practice. (e) And it is observable, that in the same act of parliament which abolished the court of star-chamber, a con- [311] viction 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. (ƒ) 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 crownoffice 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 ac. c 1 And. 157. d 5 Mod. 464. 1 Sund. 501. • Styl. Rep. 217. 245. Styl. Pract. Reg. tit. information, page 107. (edit. 1657.) 2 Sid. 71. 1 Sid. 152. f Stat. 16 Car. I. c. 10. § 6. VOL. II. 85 Mod. 460. 79 Sid. 174. cession 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. & 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 the informa[312] tion 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 farther regulated by statute 9 Ann. c. 20. viz. those in the nature of a writ of quo warranto; which was shewn, 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 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 usually considered at present as merely a civil proceeding,26 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. (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 27 as it is very little in use, on account of the great nicety required in [313] 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 M. 1 W. & M. 5 Mod. 459. Comb. 141. Far. 361. 1 Show. 106. 1 It is derived from the French," appeller," the verb active, which signifies to call upon, summon, or (26) 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. (27) The whole law of this kind of appeal is repealed by the 59 Geo. III. c. 46. See ante, S Book, 455. 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, (o) “luitur homicidium certo armen“torum 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 [314] by the party to whom it was due; it seems that, when these offen ces 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 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 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 a appeal of treason: () 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 larciny, rape, and arson. 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) n Stiernh. de jure Sueon. l. 3. c. 4. o De M. G. c. 21. P And in another place. (c. 12.) "Delictis, pro modo poenarum, equorum pecorumque numero convicti mulctantur. Pars mulctae regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus, exsolvitur." q Spenser's state of Ireland, page 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 still 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. Montague, Lett. 42.) w Britt. c. 22. By Donald Lord Rea against David Ramsey. (Rushw. vol. 2. part 2. page 112.) y 1 Hal. P. C. 349 z Mirr. c. 2. § 7. |