Page images
PDF
EPUB

were once mr.uch

oppression of

the court of

office in the court of King's Bench is as ancient as the com- misdemeanors : mon law itself (6). For as the king was bound to prosecute, extended to the or at least to lend the sanction of his name to a prosecutor, the subject by whenever a grand jury informed him upon their oaths that star chamber : there was sufficient ground for instituting a criminal suit; so, when these his immediate officers were otherwise sufficiently, assured that a man had committed a gross misdemesnor, 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 [*310] record, and to carry on the prosecution in his Majesty's name. But these informations, of every kind, are confined by the constitutional law to mere misdemesnors only; for, wherever 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 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 (c), continually harrassed 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 (b) 1 Show. 118.

(c) 1 And. 157.

[merged small][ocr errors]

continued in high vigour, and daily increasing its authority, for more than a century longer: till finally abolished by statute 16 Car. I. e. 10.

Cpon this dissolation 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 le. 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 offead a third time against the provisions of that statute (). 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 harrassed 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 controul, 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 (i), 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 and 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 recognizance of twenty pounds

[merged small][ocr errors]

(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 information shall [*312) 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 nowise restrained thereby. (16).

- There is one species of informations, still further regula- Informations ted by statute 9 Ann. c. 20, viz, those in the nature of a writ now considered of quo warranto; which was shewn, in the preceding proceedings." volume (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

by quo warranto

as merely civil

(k), See vol. III. page 262.

Jaime

(16) As the statute invests the court cognizances required by the second with a discretional power to grant cri. section of the statute. He must also, minal informations, every motion for by virtue of the same section, proceed the rule pisi must be founded on satis- to trial within a year after issue joined, factory affidavits, disclosing all the facts or the defendant will be entitled to of the case ; and, in the case of libel, his costs. And if, after notice of trial denying the charge, usually in the very given, the prosecutor neither counterwords of the charge; Rer v. Wright, mands it in time, nor proceeds to trial, 2 Chit. R. 162. Such denial, how the costs must, by the course of the ever, upon oath, is not necessary where court, be paid to the defendant; 3 the charge is very general, and does Burr. 1304. If the prosecutor neglects not impute any particular acts of cri. to apply for the judge's certificate at minality to the party aggrieved, as the trial at nisi prius, the court will where a man has been libelled gene- have no discretion to refuse his costs rally as a thief; see Doug. 387; Rer to the defendant, even though the verv. Williams, 5 B. & A. 595; 1 D. & dict was against the direction of the R. 197. As to the title of the affida- judge, and be certify, on terms, that it vits at different stages of the proceed was contrary to evidence; 2 Stra. 1131. ings, see 1 Chit. Cr. L. 858, and the On the other hand, if the trial be at cases there cited. When the rule nisi is bar, the defendant can have no costs obtained, a copy must be served on the within the statute ; see 2 Hawk. P. C. defendant, and the original shewn to c. 26, § 10. Nor can any of the dehim ; and before the rule can be made fendants, where some are acquitted, absolute, affidavit must be made of such and others convicted; Collyer's Cr.,' service. If the rule be made absolute;'. St., 259, note. See fully on this subthe prosecutor must enter into the re- jcct, Oro. Cir. Comp. " Information.''

IV. Appeal.

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 (17).

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 (18).

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 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

[ocr errors]
[blocks in formation]

* And sec Rer v. Phillips, 1 Burr. 292; 1 Ld. Ken. 331, to the same point. But a quo, warranto information cannot be quashed on motion,

though both parties consent; Rer v. Edgan, and Rer v. Brichell, 4 Burr. 2297.

with other northern nations (n), from our ancestors, the ancient Germans; among whom, according to Tacitus (6), luitur homicidium certo armentorum ac pecorum numero ; recipitque satisfactionem universa domus (P) (19). 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 recompence 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 grew no longer redeemable, the private process was still continued, in order to ensure 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

[ocr errors]

(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 panarum, equorum pecorumque numero convicti mulctantur. Purs mulctæ regi vel civitati ; pars ipsi qui vindicatur, vel propinquis ejus, ersolvitur.

(9) Spencer's State of Ireland, page 1513, edit. Hughes.

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

(f) 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 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 chuse, as they generally do, to compound the matter for money, nothing more is said about it; (Lady M. W. Montague, Lett. 42.)

(19) Homicide is expiated by the gift of a certain number of cattle or

sheep, which is received in satisfaction
by the whole family of the deceased.

« PreviousContinue »