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CHAPTER THE TWENTY-THIRD.

OF THE SEVERAL MODES OF PROSE

CUTION.

THE next step towards the punishment of offenders is their

prosecution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding, The former way is either by presentment or indictment.

I. A PRESENTMENT, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation“, without any bill of indictment laid before them at the suit of the king; as the presentment of a nuisance, a libel, and the like ; upon which the officer of the court must afterwards frame an indictment , before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offences in the sheriff's tourn or court-leet, whereupon the presiding officer may set a fine. (1) Other in- Lamb. Eirenarch. I. 4. c.5.

6 2 Inst. 739.

(1) There is some inaccuracy in this statement. An inquisition finding that a man was felo de se cannot, of course, be traversed by the individual

but

quisitions may be afterwards traversed and examined ; as particularly the coroner's inquisition of the death of a man, when [ 302 ] it finds any one guilty of homicide ; for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it: which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely. (2)

II. An indictment is a written accusation of one or more persons of a crime or misdemesnor, preferred to, and pre

See Appendix, $ 1. but it may be removed into the king's bench by certiorari, and there traversed by the executors or administrators of the deceased. Toomes v. Ethrington, 1 Saund. Rep. 363. n.(1). ed.1824. As to the flight of persons accused of felony, I am not aware that this was ever made a substantive matter of inquiry, distinct from the trial of the felony itself (see post, 387.); and as that trial could only be in the presence of the party accused, it was then the regular verdict of a jury, after an open trial, and not a case in point. The coroner, indeed, holding an inquisition on the death of a person, may find that he was murdered by A B, and that A B has fled for it; and the authorities all agree that this latter part of the finding is not traversable ; though it is observed that no adequate reason for this distinction is to be found in the books. This probably was the flight which the author intended to mention. With respect to deodands, there is no mode, indeed, by which the lord of the franchise can quarrel with the finding of the jury, so as to increase the value they have affixed, but the court will interfere to diminish that value, Foster, 266, and therefore it must be inferred that the finding is not absolutely conclusive.

And, lastly, as to presentments of petty offences in the tourn or leet, Lord Mansfield has said that it cannot be true that they are not traversable any where, R. v. Roupell, Cowp. 459. ; and the law seems to be, that before the fine is estreated and paid, though not afterwards, the presentment may be removed by certiorari into the court of king's bench and traversed there, R. v. Heaton, 2T. R. 184.

Upon the whole, it may be laid down generally, that with the exception of fight on the death of a man, no finding of an inquisition can be conclusive on a party, who has had no opportunity of vindicating his rights before the jury; while there are cases in which a party who has voluntarily foregone that right in one stage, may yet traverse the finding in some future stage. As where, upon an inquiry by the sheriff under a writ of extent, the jury find certain goods to be the goods of A B, and that finding is returned to the court of exchequer; C D, who claims the goods, and might have done so, but neglected to do so, before the sheriff, may yet traverse the finding in the court above.

(2) For the presentment of nuisances in highways, &c. by justices and others, see ante, p. 167.

sented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things, which on the part of our lord the king shall then and there be commanded them. They ought to be freeholders, but to what amount is uncertaine : which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twentythree; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of king Ethelred'. “ Exeant seniores duodecim thani, et praefectus cum eis, et jurent super sanctuarium 6 quod eis in manus datur, quod nolint ullum innocentem accu6 sare, nec aliquem noxium celare.In the time of king Richard the first (according to Hoveden) the process of electing the grand jury ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve

were to answer concerning all particulars relating to their [ 303 ] own district. This number was probably found too large and

inconvenient; but the traces of this institution still remain in
that some of the jury must be summoned out of every hun-
dred. This grand jury are previously instructed in the
articles of their inquiry, by a charge from the judge who pre-
sides upon the bench. They then withdraw, to sit and receive
indictments, which are preferred to them in the name of the
king, but at the suit of any private prosecutor ; and they are
only to hear evidence on behalf of the prosecution : for the
finding of an indictment is only in the nature of an inquiry
or accusation, which is afterwards to be tried and determined;
and the grand jury are only to inquire upon their oaths, whe-
d 2 Hal. P. C. 154.

f Wilk. LL. Angl. Sar. 117.
Ibid. 155.

* 7

ther there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes 8.(3)

The grand jury are sworn to inquire, only for the body of the county, pro corpore comitatus ; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter antiently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them : but by statute 2 & 3 Edw. VI. c. 24. he is now indictable in the county where the party died. And, by statute 2 Geo. II. c. 21., if the stroke or poisoning be in England, and the death upon the sea or out of England; or, vice versa; the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases : as particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII. c. 13., 33 Hen. VIII. c. 23., 35 Hen. VIII. c. 2., and 5 & 6 Edw. VI. c.11. And counterfeiters, washers, or minishers of the current [ 304 7. coin, together with all manner of felons and their accessories, inay by statute 26 Hen. VIII. c.6. (confirmed and explained

6 State Trials, IV. 183.

(3) This is the more manifest, because the form of the indictment is that they, upon their oath, present the party to have committed the crime. This form is, perhaps, stronger than might be wished; the law and common sense require, in ordinary cases, that when a man affirms on oath, he should be taken to express his full conviction of the truth of that which he affirms; now the finding of a grand jury is always made with the reserves attendant upon having heard the witnesses on one side only, and, in many cases, with the doubt whether the facts deposed to do not amount to a different offence in law from that which is charged in the bill. It has occurred to me to know that scrupulous minds have been under difficulty as to the line of their duty from these circumstances.

by 34 & 35 Hen. VIII. c. 26.9 85, 86.) be indicted and tried for those offences, if committed in any part of Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where the king's writ runneth : that is, at present in the county of Hereford or Salop; and not, as it should seem, in the county of Chester or Monmouth; the one being a county-palatine where the king's writ did not run, and the other a part of Wales, in 26 Hen. VIII. Murders also, whether committed in England or in foreign parts, may by virtue of the statute 33 Hen. VIII. c. 23. be inquired of and tried by the king's special commission in any shire or place in the kingdom. By statute 10 & 11 W. III. c. 25. all robberies and other capital crimes, committed in Newfoundland, may be inquired of and tried in any county in England. (4) Offences against the black act, 9 Geo. I. c. 22., may be inquired of and tried in any county in England, at the option of the prosecutor'. So felonies in destroying turnpikes, or works upon navigable rivers, erected by authority of parliament, may, by statutes 8 Geo. II. c. 20. and 13 Geo. III. c.84., be inquired of and tried in any adjacent county.(5) By statute 26 Geo. II. c. 19. plundering or stealing from any vessel in distress or wrecked, or breaking any ship contrary to 12 Ann. st. 2. c. 18m, may be prosecuted Stra. 553. 8 Mod. 134.

So held by all the judges, H. 11 See Hardr. 66.

Geo. III. in the case of Richard Mortis * Ely's case, at the Old Bailey, Dec. on a case referred from the Old Bailey. 1720. Roache's case, Dec. 1775. 2 BI. R.733.

on See pag. 244.

(4) Several statutes have been passed of a temporary nature on the subject of judicature in Newfoundland; the 5 G.IV. c.67. empowers his Majesty to constitute a supreme court of three judges, with the same powers civil and criminal, as the superior courts of law and equity in England, in which all issues of fact shall be tried by jury. By the same statute his majesty is also empowered to constitute three circuit courts, in which the trial is to be by jury if possible, and if not, by the circuit judge, who is to be one of the judges of the supreme court, and three assessors, justices of the peace, nominated by the governor, but liable to challenge, who are to give their verdict in open court.

(5) The 8 G. 2. c. 20. is repealed as to the capital punishment by the iG.4, c. 115.; but there is nothing in the latter act to alter the regulations as to the trial of the offences specified, which still remain felonies. The 13 G.3. c.84. is entirely repealed by the 3 G. 4. c. 126.; which act contains no similar provision to that mentioned in the text.

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