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*308] tected flagrante delicto, be brought into court, arraigned and tried with out indictment; as, by the *Danish law, he might be taken and hanged upon the spot, without accusation or trial.(w) But this proceeding was taken away by several statutes in the reign of Edward the Third,(x) though in Scotland a similar process remains to this day.(y) 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 information.
III. Informations are of two sorts: first, those which are partly at the suit of the king, and partly at that of a subject; and secondly, such as are only in the name of the king. The former are usually brought upon penal statutes, which inflict a 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 qu tam actions, (the nature of which was explained in a former book,)(2) 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 offence; nor on behalf of the crown after the lapse of two years longer; nor, where the forfeiture is origi nally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence.12
The informations that are exhibited in the name of the king alone are also of two kinds: first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the attorney-general; secondly, those in which, though the king is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are 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 this purpose the standing officer of the public. The objects of the king's own prosecutions, filed ex officio by his own attorney. *309] general, are properly such *enormous misdemeanours as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences 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 preservation of all its parts. The objects of the other species of informations, filed by the master of the crown-office upon the complaint or relation of a private subject, are any gross and notorious misdemeanours, 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
(W) Stiernhook, de jure Sueon. 1. 3, c. 5.
(*) 2 Hal. P. C. 14.
() Lord Kaims, i. 331.
(*) See book iii. page 162.
12 This statute is so far repealed, by the 11 & 12 Vict. c. 43, s. 36, that where no time is specially limited for laying any such information in the act of parliament relating to each particular case, the information (if it be for an offence punishable by justices upon summary conviction) must be laid within six calendar months from the time when the matter of such information arose.-STEWART.
13 And see further, as to for what causes the court will grant this information, 1 Chitt. C. 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 offer. 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 conse
the attorney-general ex officio, it must be tried by a petit jury of the county where the offence arises; after which, if the defendant be found guilty, the court must be resorted to for his punishment."
There can be no doubt but that this mode of prosecution by information (or suggestion) filed on record by the king's attorney-general, or by his coroner or master of the crown-office, in the court of king's bench, is as antient as the common law itself. (b) For, as the king was bound to prosecute, or at least to lend the sanction of his name to a prosecutor, whenever the 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 misdemeanour, 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 carry on the prosecution in his majesty's name. But [*310 these informations (of every kind) are confined by the constitutional law to mere misdemeanours only; for, whenever any capital offence is charged, the same law requires that the accusation be warranted by the oath of twelve men before the party shall be put to answer it. And as to those offences 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 starchamber, 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
(*) 1 Show. 118
quences of the measure they are requested 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 general, show his innocence of the matter imputed to him. See Doug. 284, 387, 588. 1 Burr. 402. 6 T. R. 294. 4 id. 285. 5 B. & A. 595. 1 D. & R. 197. 2 Chitt. Rep. 163. In applications against magistrates, the applicant must directly impute corrupt motives for the misconduct complained of. 3 B. & A. 432.—CHITTY.
14 If an information or an indictment for a misdemeanour 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 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 afterwards receive judgment from the King's Bench. But where an indictment for treason or felony is removed by certiorari, the law upon the subject will be found fully stated by lord Hale in the two following sections. 2 P. C. 41.
"As to an indictment of felony or treason removed out of the county by certiorari, and the party pleading, the record is sent down by nisi prius to be tried. The judges of nisi prus may upon that record proceed to trial and judgment and execution, as if they were justices of gaol-delivery, by virtue of the statute of 14 Hen. VI. cap. 1.
"But if there were any question upon that statute, yet the statute of 6 Hen. VIII. cap. 6, which extends to all justices and commissioners, as well of those of gaol-delivery and of the peace, enables the court of King's Bench to send to them the very record itself, and by a special writ or mandate to command them to proceed to trial and judgment, upon such issue joined, as they may command the justices before whom the indictment was taken to proceed to hear and determine the same as if no such issue were joined." See Sir Myles Stapleton's case, Raym. 376.
If the treason of felony is to be tried at nisi prius under the 14 Hen. VI. c. 1, then the court sends a transcript of the record, and not the record itself. 2 Hal. P. C. 3. 4 Co. 74. -CHRISTIAN.
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, (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 starchamber 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, 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 that in the same act of parlia*311] ment which abolished the court of starchamber, a conviction by informa tion 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 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. (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 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 afterwards a more temperate remedy was applied in parliament by statute 4 & 5 W. and 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 recogni zance 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 *312] 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.
There is one species of informations still further regulated by statute 9 Anne, e. 20, viz., those in the nature of a writ of quo warranto; which was shown, in the preceding book,(k) to be a remedy given to the crown against such as bad usur d or intruded into any office or franchise. The modern information tends to the same purpose as the antient 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.15
(e) 1 Ard. 167.
(d) 5 Mod. 464.
() Styl. Rep. 217 245, Styl. Pract. Reg. tit. Information, page 187, edit. 1657. 2 Sid. 71. 1 Sid. 152.
() Stat. 16 Car. I. c. 10, 26.
(0) 5 Mod. 460.
(A) 1 Saund. 301. 1 Sid. 174.
() M. 1 W. and M. 5 Mod. 459. Comb. 141. Far. 261. 1 Show. 106. (*) See book iii. page 262.
15 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 T. R. 484.—CHRISTIAN.
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 nicety required in conducting it, I shall treat of it very briefly, referring the student for more particulars to other [*313 more voluminous compilations.(m)
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 antient Germans; among whom, according to Tacitus,(0) "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 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 grew no longer redeemable, the private process was still continued, in order to insure the [*314 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 antiently 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 them
() It is derived from the French "appeler," 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.
()2 Hawk. P. C. c. 23.
() Stiernhook, de jure Sueon. l. 3, c. 4.
(*) De Mor. Germ. c. 21.
(P) And in another place, (c. 12,) “Delictis, pro modo pænarum, equorum pecorumque numero convicti mulctantur. Para mulcti regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus ersolvitur.”
(9) Spenser's State of Ireland, p. 1513, edit. Hughes. (*) Judic. Civit. Lund, Wilk. 71.
(The weregild of a ceorl was 266 thrysmas, that of the king 30,000; each thrysma being equal to about a shilling of our prese money. The weregild of a subject was paid en
selves are larceny, rape, and arson. And 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 relations 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 *315] 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 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 Glocester, 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 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 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 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 damages to the party for the im prisonment 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
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.(f) And the antient usage was, so