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 [*312] filing it; and, at all events, to pay costs, unless *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.

Informations in quo warranto.-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 (by what authority); 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 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.1

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 *great [*313] nicety required in conducting it, I shall treat of it very briefly; referring the student for more particulars to other more voluminous compilations. (m) 2

(k) See book III, page 262.

(1) It is from the French "appeller," the verb active, which signifles to call upon, summon. or challenge one; and not the verb neuter, which signifies the same as the ordinary sense of "appeal” in English.

(m) 2 Hawk. P. C. ch. 23.

1 See Rex v. Francis, 2 T. R. 484, in which it was held that a new trial might be granted in these cases. [These suits are now civil suits rather than criminal prosecutions. People ex rel. v. Pull. P. P. Car Co., 175 Ill. 125; High, Ex. Rem., § 591. The right to have public franchises properly conducted is the right of every citizen, and if the attorney-general will not act, a private

citizen may set the court in motion. See State v. Cunningham, 81 Wis. 440; S. C., 83 Wis. 90.]

2[These appeals were like qui tam actions, except that all the recovery went to the prosecutor. The great and essential distinction between appeals and other prosecutions was that the king could not stop the prosecution by pardon. 2 Wilson's Works, 340, 341.]

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" (the whole family receives satisfaction, and the homicide is expiated by a certain recompense in flocks and herds). (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. (9) 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 *these offences by degrees [*314] 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: () 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.

(n) Stiernh. de jure Sueon. 1. 3, c. 4.

(o) de M. G. c. 21.

(p) And in another place, (c. 12), "Delictis, pro modo pœna: equorum pecorumque numero convicti mulctantur. Pars muleta regi vel civitati; pars ipsi qui vindicutur, vel propinquis ejus exsolvitur." (Those who are convicted of offences are punished by a fine of a certain number of horses and cattle. One part of the fine is paid to the king or state, the other part to the plaintiff or to his relations.)

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

(r) Judic. Civit. Lund. Wilk. 71.

(8) 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 half 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. (x) By Donald lord Rea against David Ramsey. (Rushw. vol. 2, part 2, p. 112.)

1 Hal. P. C. 349.

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 confined, by an ordinance of King Henry the First, to the four nearest degrees of blood. (2) 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 [*315] the killing of the ancestor. But this rule hath three exceptions: 1. If the person killed leaves an innocent wife, she only, and not the heir, shall have the appeal: 2. If there be no wife, and the heir be accused of the murder, the person who, next to him, would have been heir male, shall bring the appeal: 3. If the wife kills her husband, the heir may appeal her of the death. And, by the statute of Gloucester, 6 Edw. I, c. 9, all appeals of death must be sued within a year and a day after the completion of the felony by the death of the party: which seems to be only declaratory of the old common law; for in the Gothic constitutions we find the same præscriptio annalis, quæ currit adversus actorem, si de homicida ei non constet intra annum a cæde facta, nec quenquam enterea arguat et accuset" (the limitation of a year, which runs against the appellor, if he prove not the homicide within a year from its perpetration, or bring his accusation within that time). (a)

Trial on appeal was jeopardy.-These appeals may be brought previous to an indictment: and if the appellee be acquitted thereon, he cannot be afterwards indicted for the same offence. In like manner as by the old Gothic constitution, if any offender gained a verdict in his favour, when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offence: (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 punitor pro eodem delicto" (no one is punished twice for the same offence). Before this statute was made, it was not usual to indict a man for homi

() Mirr. c. 2, § 7.

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

(b) Stiernh. de jure Goth. l. 1, a ă

cide within the time limited for appeals; which produced very great inconvenience, of which more hereafter. (c)

*If the appellee be acquitted, the appellor (by virtue of the statute of Westm. 2, 13 Edw. I, c. 12) shall suffer one [*316] 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.

Punishment. 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 in 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 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 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 *dis[*317] charge an appeal; (2) "nam quilibet potest renunciare juri pro se introducto" (for any one may relinquish a right introduced for his own avail).'

(e) 2 Hawk. P. C. 392. (h) Robertson, Chas. V, i. 45.

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 as sizes, 1817, for the murder, and acquit ted, 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 after wards delivered in by the appellant, to

(f) LL. Edm. § 3. (i) 1 Hal. P. C. 9. 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. & 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,

These are the several modes 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.

[*318]

*CHAPTER XXIV.

OF PROCESS UPON INDICTMENT.

1

Process after indictment. We are next, in the fourth place, to inquire into the manner of issuing process, 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 assizes 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.

For misdemeanors.- The proper process on an indictment for any petit misdemeanor, or on a penal statute, is a writ of venire facias (that you cause to come), 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 bath 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 issue, which commands the sheriff to take his body, [*319] and have him at the next assizes; and if he cannot be taken upon the first capias, a second and third shall issue, called an alias, and a pluries capias. But, on indictments for treason or felony, a

and his former acquittal of the same offense on an indictment. But it was doubted whether, where 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, ordered 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 v. Kennedy, 5 Burr. 2643; 2 W. Bl. 713; Rex v. Taylor, 5 Burr. 2793; Smith v. Taylor, id.; 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 offenses, together with wagers of battle, by the passing of the statute 59 Geo. III, c. 46.