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 The latter of these acts was soon indeed repealed by statute 1 Hen.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 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, [*311] that in the same act of parliament which abolished the court of star-chamber, a conviction by information is expressly reckoned up, as one of the legal modes of conviction of such persons as should offend a third time against the provisions of that statute (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 freind 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 oppresive use of them, in the times preceding the revolution, occasioned a struggle, soon after the accession of king William (1), 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 temporate 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 information shall be tried within a year after issue joined. [*312] 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

(c) 1 And. 157.

(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. & M. 5 Mod. 459. Comb. 141. Far. 361. 1 Show. 106.

(k) See Book III. page 262.

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 (17), (18).

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 as it is very little in use, on account of the [313] great nicety required in conducting it, I shall treat of it very briefly; referring the student for more particulars to other more voluminous compilations (m) (19).

This private process, for the punishment of public crimes, had probably its original in those times when a private pecuniary satisfaction, called a weregild, was constantly paid to the party injured, or his relations, to expiate enormous offences. This was a custom derived to us, in common with other northern nations (n), from our ancestors, the ancient Germans ; among whom, according to Tacitus (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 cus

(7) It is dervied from the French, “appeller," 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. ch. 23.

(n) Stiernh. de jure Sueon. 1. 3, c. 4. (0) de M. G. c. 21.

(p) And in another place, (c. 12.) "Delictis, pro modo poenarum, equorum pecorumque numero convicti muletantur. Pars mulctae regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus exsolvi

tur."

(q) Spenser's State of Ireland, p. 1513, edit. Hughes.

(17) 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

(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 T. R. 484.

(18) See 2 R. S. 581, &c.

(19) Appeals of felony are abolished in New-York: (2 R. S. 748, § 43): in England, by 59 Geo. III. c. 46.,

tom, a process was certainly given, for recovering the weregild by the party to whom it was due; it seems that, when *these of [*314] fences 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 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 burnt, may institute this private process. The only crime against one's relation, for which an appeal can be brought, is that of killing him, by either murder or manslaughter. But this cannot be brought by every relation: but only by the wife for the death of her husband, or by the heir male for the death of his ancestor; which heirship was also confirmed, by an ordinance of king Henry the First, to the four nearest degrees of blood (z). It is given to the wife on account of the loss of her husband: therefore, if she marries again, before or pending her appeal, it is lost and gone; or, if she marries after judgment, she shall not demand execution. The heir, as was said, must also be heir male, and such a one as was the *next heir by the course of the common law, at the time of the [*315] killing of the ancestor. But this rule hath three exceptions: 1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal: 2. If there be no wife, and the heir be accused of the murder, the person, who next to him would have been heir male, shall bring the appeal: 3. If the wife kills her husband, the heir may appeal her of the death. And, by the statute of Gloucester, 6 Edw. I. c. 9. all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party: which seems to be only declaratory of the old common law: for in the Gothic constitutions we find the same "praescriptio annalis, quae currit adversus actorem, si de homicida ei non constet intra annum a caede 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 matter for money, nothing more is said about (Rushw. vol. 2, part 2, p. 112.) it. (Lady M. W. Montague, lett. 42.)

(2) Britt. c. 22.

(x) By Donald lord Rea against David Ramsey.

(y) 1 Hal. P. C. 349.
(z) Mirr. c. 2, § 7.

(a) Stiernh. de jure Goth. 1. 3, c. 4.

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 sta tute 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 (ƒ). And the ancient 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 execu tion (g): a custom founded upon that savage sprit 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 indict[*317] ment, so the appellant by his release may discharge an ap peal (i); nam quilibet potest renunciare juri pro se introducto (20)."

(b) Stiernh. de jure Goth. l. 1, c. 5.

(c) See page 335.

(d) l. 1, c. 34, ◊ 48.

(e) 2 Hawk. P. C. 392.

(20) 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 assises, 1817, for the murder, and acquitted, though under circumstances of strong suspicion. The appellee,

(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.

when called upon to plead, pleaded “not guil ty, 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 v. Thornton, 1 B. and A. 405. It

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.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

WE are next, in the fourth place, to inquire into the manner of issuing process (1), after indictment found, to bring in the accused to answer it. We have hitherto supposed the offender to be in custody before the finding of the indictment; in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled, or secretes himself, in capital cases; or hath not, in smaller misdemeanors, been bound over to appear at the assises or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And, if it be found, then process must issue to bring him into court; for the indictment cannot be tried, unless he personally appears: according to the rules of equity in all cases, and the express provision of statute 28 Edw. III. c. 3. in capital ones, that no man shall be put to death, without being brought to answer by due process of law (2).

The proper process on an indictment for any petit misdemeanor, or on a penal statute, is a writ of venire facias, which is in the nature of a summons to cause the party to appear. And if by the return to such venire it appears that the party hath lands in the county whereby he may be distrained, then a distress infinite shall be issued from time to time till he appears. But if the sheriff returns that he hath no lands in his bailiwick, (then upon his non-appearance) a writ of capias *shall is- [*319] sue, which commands the sheriff to take his body, and have him

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 shew 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 judg ment 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, ordered that judgment should be stayed in the appeal, and that the appellee should be discharged. This VOL. II.

case, the first of the kind that had occurred for more than half a century, (See Bigby v. Kennedy, 5 Burr. 2643, 2 W. Bl. 713; Rex v. Taylor, 5 Burr, 2793; Smith v. 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 G. III. c. 46.

(1) As to process in general, see Dalt. J. c. 193, Com. Dig. Process, A. 1; Burn. J. Process; Williams J. Process; 1 Chit. C. L. 2 ed. 337 to 370.

(2) In New-York, the defendant must be personally present at a trial for felony. On trials for other offences, he may appear in person or by attorney. (2 R. S. 734, 13.) His appearance is compelled by a warrant for his arrest, (id. 728, § 55) or by proceeding against his bail. (Id. 729 & 709.)

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