Trial of a thief taken with the mainor. necessary, that it may appear whether it be grand or petit larceny, and whether entitled or not to the 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 mainor, that is, with the thing stolen upon him in manu. For he might, when so [308] detected flagrante delicto, be brought into court, arraigned, and tried, without indictment; as, by the Danish law, he might be taken and hanged upon the spot, without accusation or trial. name of any one of their public officers plements for making, altering, or repair If a larceny be committed of goods and chattels provided for or at the expense of any county, riding, and division, they may be described as belonging to the inhabitants of such county, &c., without specifying the names of any. 7 Geo. IV., c. 64, s. 15. Goods and chattels provided for the use of the poor of any parish, township, or hamlet, to be used in the work-house or poor-house, or by the master or mistress thereof, or the workmen or servants therein, may be described as belonging to the overseers of the parish, &c., for the time being, without specifying the names, 7 Geo. IV., c. 64, s. 16; or, if it be the workhouse of a union or a parish under the operation of the 4 & 5 Will. IV., c. 76, as the property of the guardians of the poor of the union or parish. 5 & 6 Will. IV., c. 69, s. 7. Materials, tools, or im (21) These causes no longer exist; but it is still necessary, in order to make a thing the subject of larceny, that it should be of some value, and be so stat ed in the indictment; it need not, however, be of the value of some coin known to the law, i. e., of a farthing at the least. 9 C. & P., 349. But this proceeding was taken away by several statutes in the reign of Edward the Third; though in Scotland a similar process remains to this day. 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 infor mation. III. BY IN- The the king and the subject jointly. a III. Informations" are of two sorts: first, those which are partly at the suit of the king and partly at that of a subject; At suit of and, secondly, such as are only in the name of the king. former are usually brought upon penal statutes, which inflict 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 volumez), 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 offense; 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 offense. own suit, vate per prosecu The informations that are exhibited in the name of the king At suit of the king alone are also of two kinds: first, those which are truly and alone; properly his own suits, and filed ex officio by his own immedi- either at his ate officer, the attorney-general; secondly, those in which, though the king is the nominal prosecutor, yet it is at the rela- or for prition of some private person or common informer, and they are sons. 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 Objects of this purpose the standing officer of the public. The objects of the king's own prosecutions, filed ex officio by his own attorney- tions. general, are properly such enormous misdemeanors as pecul- [309] iarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offenses 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 presx 2 Hal., P. C., 149. Lord Kayms, i., 331. z See vol. iii., page 161. (22) As to criminal informations in tion; 2 Wooddeson, 560 to 564; 1 Chit., general, see Hawk., b. 2, c. 84; Com. Crim. L., 2d ed., 841 to 877.-[CHITDig., Information; Bac. Ab., Informa- TY.] Objects of ervation of all its parts.* The objects of the other species of mations for informations, filed by the master of the crown-office upon the private per complaint or relation" of a private subject, are any gross and such infor sons. 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 attorneygeneral ex officio, it must be tried by a petit jury of the county where the offense arises; after which, if the defendant be found guilty, the court must be resorted to for his punishment." a 2 Hawk., P. C., 260. (23) Which must be upon oath. 4 his innocence of the matter imputed to & 5 W. & M., c. 18.-[CHITTY.] (24) And see, further, for what causes the court will grant this information, 1 Chit., Crim. 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 of fer; 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 request ed 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 so general as to make it impossible, show * him. See Dougl., 284, 387, 588. 1 Burr., 402; 6 T. R., 294; 4 Id., 285; 5 B. & Ald., 595; 1 D. & R., 197; 2 Chit. Rep., 163. In applications against magistrates, the applicant must directly impute corrupt motives for the misconduct complained of. 3 B. & Ald., 432. [And there must be previous notice of the application given to the magistrates complained of. 5 Ad. & E., 666.]—[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 afterward receive judgment from the Court of King's Bench. If the treason or felony is to be tried By the Bill of Rights, 1 R. S., 93, § 12, no person in the State of New York can be held to answer for a capital or other infamous crime in a court of criminal jurisdiction, unless on presentment or indictment of a grand jury. This leaves open to prosecution, by information, all offenses except those punishable with death or by imprisonment in a state prison; and, consequently, here, as well as in England, misdemeanors may still be prosecuted by information filed by the attorney-general, unless the practice may be considered obsolete. After the lapse of so great a period of time as has occurred since any attempt has been made to file an information, it may well be doubted whether the proceeding would now be sustained. In 1803, in The People v. Dole, 1 Caines, 181, a motion was made for a rule to show cause why an information should not be filed. The motion was successfully resisted, but the mode of proceeding was not questioned. In the same year a similar motion was made in The People v. Freer, 1 Id., 394, 485, and again the mode of proceeding was not denied. The motion, however, was not granted. In the latter case HOFFMAN and HAMILTON were counsel for the defendant. The statute, also, barring criminal prosecutions in all cases except murder, unless an indictment be found by a grand jury within three years after the commission of the offense (2 R. S., 726, § 37), may be considered as a legislative exposition of the law that the proceeding by information for criminal offenses no longer exists in New York. tions on this when grant able in capi. There can be no doubt but that this mode of prosecution by Observainformation (or suggestion), filed on record by the king's at- mode of torney-general, or by his coroner or master of the crown-of- prosecution; fice in the Court of King's Bench, is as ancient as the common able in genlaw itself. For as the king was bound to prosecute, or, at eral. least, to lend the sanction of his name to a prosecutor, whenever a 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 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 further intelligence, to convey that information to the Court of King's Bench by a suggestion on record, and to [310] carry on the prosecution in his majesty's name. But these informations (of every kind) are confined by the constitutional law to mere misdemeanors only; for, wherever any capital Not grantoffense is charged, the same law requires that the accusation tal offenses. be warranted by the oath of twelve men before the party shall be put to answer it. And, as to those offenses 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 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, 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 vigor, and daily increasing its authority, for more than a century longer, till finally abolished by statute 16 Car. I., c. 10. b 1 Show., 118. at nisi prius, under the 14 Hen. VI., c. 1 then the court sends a transcript of c 1 And., 157. the record, and not the record itself. 2 Upon this dissolution, the old common-lawd 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 [311] And it is observable, 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.f It is true, Sir Matthew Hale, who presided in this court soon after the time of such revival, is saids 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. 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, 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 afterward, a more temperate remedy was applied in Parliament by statute 4 & 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 [312] 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. Informa tions quo warranto. There is one species of informations still further regulated by statute 9 Ann., c. 20, viz., those in the nature of a writ of |