this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore in his dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only ; though what are so requisite, must too often be left to the discretion of the gaolers; who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner, unless where he was unruly, or had attempted to escape (r); this being the humane language of our ancient lawgivers (s), “ custodes poenam

sibi coinmissorum non augeant, nec eos torqueant; sed omni saevitia remota, pietateque adhibita, judicia debite exequantur."

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

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 (), 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

(a) Lamb. Eirenarch. l. 4, c. 5.

(r) 2 Inst. 391. 3 Inst. 34. (s) Flet. l. 1, c. 26.

(6) 2 Inst. 739.

(1) It may here be useful briefly to consider There is no general statute of limitations apthe time when the prosecution should be com- plicable to criminal proceedings. 2 Hale, 158. menced. The habeas corpus act provides, Lieutenant-colonel Wall was tried and exethat a person committed for treason or felony cuted, for a murder committed twenty years must be indicted in the ensuing term or ses. before. And it has been repeatedly held, that sions, or the party must be bailed, unless it no length of time can legalize a public nui. be shewn upon oath, that the witnesses for sance, although it may afford an answer to an the prosecution could not be produced at the action of a private individual, 7 East, 199, preceding session. 31 Car. II. c. 2. s. 7. ante, 167. note (12). (See accordingly, 2 R. S. 737, 928, &c.) In New York, indictments for murder may This regulation applies, however, only to per- be found at any time ; in all other cases, insons actually confined upon suspicion, and is dictments must be found and filed in the prosolely intended to prevent the protracting of per office, within three years after the comarbitrary imprisonment; so that it does not mission of the offence : but the time during preclude the crown from preferring an indict which the defendant has not been an inhabitment at any distance of time from the actual ant of the state, or usually resident in it, is perpetration of the offence, unless some par- not to be computed part of the time. 2 R. S. ticular statute limits the time of prosecuting. 726, 937.)

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 (2); of flight in persons accused of felony (2) ; 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. Other inquisitions may be af[*302] terwards traversed and examined ; as particularly the coroner's 'in

quisition of the death of a man, when it finds any one guilty of homicide (3); 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 misdemeanor, 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) (4). 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 seuled by several acts of parliament. However, they are usually gentlemen of the bes.

, figure in the county (5). 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 praefectis 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 (c) See Appendix, 6, 1.

(e) Ibid. 155.
(1) Wilk. LL. Angl. Saz. 117.

(d) 2 Hal. P. C. 154.

(2) But such an inquisition is now consider that the justification is true, the plaintiff may ed traversable. 1 Saund, 363. note 1. Impey's be immediately put upon his trial for the crime Off. Cor. 437.

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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 "found too large and [*303]
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 recieve 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 iheir
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
anciently carried, that where a man was wounded in one county, and died
in another, the offender was at common law indictable in either, 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. 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 accessaries may be indicted in the county where
either the death, poisoning, or stroke shall happen (6). 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 di-
rect, 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 *of the current coin, together with all man- [*304]
ner of felons and their accessaries, 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 sta-
(g) State Trials, IV. 183.

(k) Ely's case, at the Old Bailey, Dec. 1720. Roache's case, Dec. 1775.

(h) Stra. 533. 3 Mod. 134.
(i) See Hardr. 66.

(6) See accordingly, 2 R. S. 727, 9 47, 48.

.

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tute 10 & 11 W. III. c. 25. all robberies and other capital crimes, com. mitted 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 (?). 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 Ann. 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 ["305] destroying the king's ships, *magazines, or stores, may by sta

tute 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. misdemeanors committed in India may be tried upon formations 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 (0) (7). 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 (8). 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 (9) (9)

(1) So held by all the judges, H. 11 Geo. III. in was moved in arrest of judgment, that Chester and the case of Richard Mortis, on a case referred from not Salop was the next adjoining English county.

But all the judges (in Mich. 15 Ceo. Ill.) held the (m) See page 245.

prosecution to be regular. (n) At Shrewsbury summer assises, 1774, Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It (9) Stat. 25 Hen. VIII. c. 3. 3 W. & M. c. 9.

the Old Bailey.

(0) 1 Hal. P. C. 507.
(p) Stat, 13 Geo. III. c. 31.

(7) See accordingly, 2 R. S. 727, 9 50. united kingdom, whether within the king's (8) Contra in New York; see 2 R. S. 727, dominions or without, any justice of the coun

When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse 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 such offender; and such persons shall have terwards have it in his possession in any other power to hear and determine all such offences, part, he may be indicted for larceny in that part within the county or place limited in their where he shall so have such property in his commission by a jury of such county or place, possession, as if he had actually stolen it in the same manner as if the offences had there ; and if any person having knowingly rebeen actually committed in such county or ceived, in any one part of the united kingdom, place : and by $ 8, where any person being se. any stolen property, which shall have been stoloniously struck, poisoned, or huri, upon the len in any other part, he may be indicted for sea, or at any place oul of England, shall die such offence in that part where he shall so reof such stroke, &c. in England, or vice ver- ceive such property, as if it had been original. sa, every offence committed in respect of any ly stolen in that part. such case, whether the same shall amount to As to accessaries. By 7 Geo. IV. c. 64, 0 the offence of murder, or manslaughter, or be. 9, accessaries before the fact any felony, may ing accessary before the fact to murder, or af. be tried in any court that has jurisdiction to ter the fact to murder or manslaughter, may be try the principal offender, although the of. tried and punished in the county or place in fence of such accessaries may be committed England in which such death, stoke, &c. on the high seas, or on land, within or without shall happen, in the same manner, in all re. the king's dominions; and is the principal's ofspects, as if such offence had been wholly fence is committed in one county, and the committed in chat county or place.

other offence in another, such accessaries As to offences committed on the borders of may be tried in either; and by 10, a similar counties. By 7 Geo. IV. c. 64. 12, where provision is made with respect to accessaries any felony or misdemeanor shall be committed after the fact to felony. on the boundary or boundaries of two or more As to treasons. By 35 H. VIII. c. 2. (which counties, or within 500 yards thereof, or shall is not repealed by 1 and 2 P. and M. c. 10, see be begun in one county and completed in an. 1 East, P. C. 103.) all treasons or misprisions other, every such felony or misdemeanor may of treason committed out of the realm, may be tried and punished in any of the said coun

be tried in the court of King's Bench, by a ties, in the same manner as if it had been ac jury of the county in which the court sits, or tually and wholly committed therein. by a special commission in any county in Eng.

As to offences committed on persons or pro- land. See Chit. Cr. L. 188. perty in coaches or vessels.I By 7 Geo. IV. c. An indictment for bigamy may, by 9 Geo. 64,913, where any felony or misdemeanor shall IV. c. 31, Ø 22, be tried in the county where be committed on any person, or on or in respect the offender is apprehended, or is in custody, of any property in or upon any coach, waggon, the same as if the offence had been actually cart, or other carriage whatever, employed in committed there. any journey, or on board any vessel whatever In an indictment for a libel the venue must employed on any voyage upon any inland na. be laid in the county where the publication vigation, such felony or misdemeanor may be

took place. tried and punished in any county through any Indictments for offences against the custoins

whereof such coach, &c., or ressel, shall and excise may be tried in any county of Engvoyage during which such felony or misde. 7 and 8 Geo. IV. c. 53, 9 43. meanor shall have been committed, in the Offences committed in a county of a city or same manner as if it had been actually com- town, may be tried in the county at large., mitted in such county ; and where any part of See 38 Geo. III. c. 52; 51 Geo. III. c. 1ou; any highway or navigation shall constitute the 60 Geo. III. c. 4; 1 Geo. IV. c. 4. If the in, boundary of any two counties, such felony or dictment states the felony to have been com.. misdemeanor may be tried and punished in ei. mitted in the county at large, and it was com. ther of the said counties through, or adjoining mitted in the county of a city or town, this is to, or by the boundary of any part whereof bad. Rex v. Mellor, R. and R. C. 144. Bat such coach, &c., or vessel, shall have passed, if the offence be properly laid in the county in the course of the journey or voyoge during of a town, and the indictment is preferred in which such felony or misdemeanor shall have the county at large, it need not be averred that been committed, in the same manner as if it that is the next adjoining county to the county had been actually committed in such county. of the town. Rex v. Goff, id. 179. The 26

As to larceny generally. By the Larceny H. VIII. c. 6, 9 6, which makes felonies in Act, 7 and 8 Geo. IV. c. 29, 076, if any per- Wales triable in the next English county, exson having seloniously taken any property in tends to felonies created since that statute.. any one part of the united kingdomn, shall af. Rex v. Wyndham, id. 197. + 2 R. S. 727, Ø 45.

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