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quo warranto, which was shown in the preceding volumek 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 attorneygeneral, 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.*

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.

PEAL.

IV. An appeal, in the sense wherein it is here used, does not IV. BY APsignify 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. 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 of fense against the public. As this method of prosecution is still in force, I can not omit to mention it; but as it is very little in use, on account of the great nicety required in conducting it, I [313] shall treat of it very briefly, referring the student for more particulars to other more voluminous compilations.m

26

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 offenses. This was a custom derived to us, in common with other northern nations," from our ancestors, the ancient Germans, among whom, according to Tacitus," "luitur homicidium certo armentorum ac pecorum numero; recipitque satisfactionem universa domus." In the same manner by the Irish Brehon law, in case

* See vol. iii., page 262.

1 It is derived 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" in English.

m2 Hawk., P. C., ch. 23.

(26) The whole law as to this kind of appeals was repealed by the 59 Geo. III., c. 46.-[CHITTY.] See the last in

n Stiernh., De Jure Sueon., 1. 3, c. 4.
• De M. G., c. 21.

P And in another place (c. 12), “De-
lictis, pro modo pœnarum, equorum pe-
corumque numero convicti mulctantur.
Pars mulctæ regi vel civitati; pars ipsi
qui vindicatur, vel propinquis ejus, ex-
solvitur."

stance of an appeal of murder, 1 B. &
Ald., 405.t

*See 2 R. S., 581 to 586, regulating the proceedings upon filing informations in the nature of quo warranto.

t Appeals of felony are abolished in New York.-(2 R. S., 748, § 43.)

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. And thus we find in our Saxon laws (particularly those of King Athelstan') the several weregilds for homicide established in progressive order, from the death of the ceorl, or peasant, up to that of the king himself. And in the laws of King Henry I.t we have an account of what other offenses were then redeemable by weregild, and what were not As, therefore, during the continuance of this custom, a [314] process was certainly given for recovering the weregild by the party to whom it was due, it seems that when these offenses 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 offense.

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;1 but that in the first was virtually abolishedy 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 arAnd for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burned, may institute this private process. The only crime against one's relation for which an appeal can be brought is that of killing him,

son.

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

Judic. Civit. Lund., Wilk., 71.
The weregild of a ceorl was 266
thrymsas, that of the king 30,000; each
thrymsa being equal to about a shilling
of our present money. The weregild
of a subject was paid entirely to the re-
lations 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 Č. 12.

In Turkey this principle is still car

ried so far, that even murder is never
prosecuted by the officers of the govern
ment, as with us. It is the business of
the next relations, and them only, to re-
venge the slaughter of their kinsmen;
and if they rather choose (as they gen-
erally 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. ii., part 2, page 112.)

1 Hal., P. C., 349.

by either murder or manslaughter. But this can not 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 Henry the First, to the four nearest degrees of blood. 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 515] a one as was the next heir by the course of the common law, at the time of the killing of the ancestor. But this rule has 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 constat intra annum a cæde 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 can not be afterward indicted for the same offense. In like manner as by the old Gothic constitution, if any offender gained a verdict in his favor when prosecuted by the party injured, he was also understood to be acquitted of any crown prosecution for the same offense; 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 passed, by virtue of 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 can not afterward 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

If the appellee be acquitted, the appellor (by virtue of the [316] statute of Westm. 2, 13 Edw. I., c. 12) shall suffer one year's imprisonment, and pay a fine to the king, besides restitution of

z Mirr., c. 2, § 7.

Stiernh., De Jure Goth., 1. 3, c. 4.

b Ibid., 1. 1, c. 5.
c See page 335.

[317]

damages to the party for the imprisonment and infamy which
he has sustained; and if the appellor be incapable to make res-
titution, 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
henceforward they ceased to be in common use.

If the appellee be found guilty, he shall suffer the same judg
ment 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 par-
don it than he can remit the damages recovered on an action
of battery. 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. 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 untutor-
ed inhabitants of America; as if the finger of nature had pointed
it out to mankind in their rude and uncultivated state. How-
ever, the punishment of the offender may be remitted and dis-
charged by the concurrence of all parties interested; and as the
king by his pardon may frustrate an indictment, so the appel-
lant by his release may discharge an appeal,i “nam quilibet po-
test renunciare juri, pro se introducto.'

These are the several methods of prosecution instituted by the laws of England for the punishment of offenses, 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 infor mation or appeal.

a L. 1, c. 34, § 48.

e 2 Hawk., P. C., 392.
fLL. Edm., § 3.

368

M. 11 Hen. IV., 12; 3 Inst., 131.

h Robertson, Cha. V., i., 45.
i1 Hal., P. C., 9.

1

318

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

PROCESS ON
INDICT-

We are next, in the fourth place, to inquire into the manner FOURTH. of issuing process, after indictment found, to bring in the accused to answer it.' We have hitherto supposed the offender MENT. 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 can not 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.

facias.

finite.

The proper process on an indictment for any petit misde- By venire meanor, 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. Distress inBut if the sheriff returns that he hath no lands in his bailiwick, then (upon his non-appearance) a writ of capias shall issue, Capias. which commands the sheriff to take his body, and have him at [319] the next assizes; and if he can not be taken upon the first capias, a second and a third shall issue, called an alias, and a pluries capias. But, on indictments for treason or felony, a capias is the first process; and, for treason or homicide, only one shall be allowed to issue, or two in the case of other felonies, by statute 25 Edw. III., c. 14, though the usage is to issue only one in any felony, the provisions of this statute being in most cases found impracticable. And so, in the case of misdemeanors, it is now the usual practice for any judge of the Court of King's Bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defend

a See Append., § 1.

b2 Hal., P. C., 195.

(1) As to process in general, see Dalt., Burn, Just., Process; 1 Chit., Crim. L., J., c. 193; Com. Dig., Process, A. 1; 2d ed., 337 to 370.-[CHITTY.]

VOL. IV.-A A

369

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