Blackstone’s Commentaries with Notes of Reference (1803)

St. George Tucker

Of the Several Modes of Prosecution

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 offense from their own knowledge or observation,1 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 as the author 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 offenses in the sheriff’s tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards traversed and examined; as particularly the coroner’s inquisition of the death of a man, when 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.

II. AN indictment2 is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented 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 jail 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.3 They ought to be freeholders, but to what amount is uncertain:4 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 twenty three; 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.5Exeant seniores duodecim thani, et praefectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, 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 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 hundred. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides 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, whether 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.6

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 act of parliament. And to so high a nicety was this matter anciently 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 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. 35 Hen. VIII. c. 2. and 5 & 6 Edw. VI. c. 11. But, in general, all offenses must be inquired into as well as tried in the county where the fact is committed.

WHEN the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to endorse on the back of the bill, “ignoramus;” or, we know nothing of it; intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English, more absolutely, “not a true bill;” and then are party is discharged without farther answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then endorse upon it, “a true bill;” anciently, “billa vera.” The indictment is then said to be found, and the party stands indicted. But, to find a bill, there must at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offense, unless by the unanimous voice of twenty four of his equals and neighbors: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation; and afterwards, by the whole petit jury, of twelve more, finding him guilty upon his trial. But, if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree.7 And the indictment, when so found, is publicly delivered into court.

INDICTMENTS must have a precise and sufficient certainty. By statute 1 Hen. V. c. 5. all indictments must set forth the Christian name, surname, and addition of the state and degree, mystery, town, or place, and the county of the offender: and all this to identify his person. The time, and place, are also to be ascertained, by naming the day, and township, in which the fact was committed: though a mistake in these points is in general not held to be material, provided the time be laid previous to the finding of the indictment, and the place to be within the jurisdiction of the court. But sometimes the time may be very material, where there is any limitation in point of time assigned for the prosecution of offenders; as by the statute 7 Will. III. c. 3. which enacts, that no prosecution shall be had for any of the treasons or misprisions therein mentioned (except an assassination designed or attempted on the person of the king) unless the bill of indictment be found within three years after the offense committed:8 and, in case of murder, the time of the death must be laid within a year and a day after the mortal stroke was given. The offense itself must also be set forth with clearness and certainty: and in some crimes particular words of art must be used, which are so appropriated by the law to express the precise idea which it entertains of the offense, that no other words, however synonymous they may seem, are capable of doing it. Thus, in treason, the facts must be laid to be done, “treasonably, and against his allegiance;” anciently “proditorie et contra ligeantiae suae debitum:” else the indictment is void. In indictments for murder, it is necessary to say that the party indicted “murdered,” not “killed” or “slew,” the other; which till the late statute was expressed in Latin by the word “murdravit.”9 In all indictments for felonies, the adverb “feloniously, felonice,” must be used; and for burglaries also, “burglariter,” or in English, “burglariously:” and all these to
ascertain the intent. In rapes, the word “rapuit,” or “ravished,” is necessary, and must not be expressed by any periphrasis; in order to render the crime certain. So
in larcenies also, the words “felonice cepit et asportavit, feloniously took and carried away,” are necessary to every indictment; for these only can express the very offense. Also in indictments for murder, the length and depth of the wound should in general be expressed, in order that it may appear to the court to have been of a mortal nature: but if it goes through the body, then its dimensions are immaterial, for that is apparently sufficient to have been the cause of the death. Also where a limb, or the like, is absolutely cut off, there such description is impossible.10 Lastly, in indictments the value of the thing, which is the subject or instrument of the offense, must sometimes be expressed. In indictments for larcenies this is 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 mainour, that is, with the thing stolen upon him, in manu . For he might, when so 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.11 But this proceeding was taken away by several statutes in the reign of Edward the third:12 though in Scotland a similar process remains to this day.13 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 qui tam actions, (the nature of which was explained in a former volume14) 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.

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 general, are properly such enormous misdemeanors, as peculiarly 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. A power, so 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, which has wisely provided 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 misdemeanors, riots, batteries, libels, and other immoralities of an atrocious kind,15 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 attorney general 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 must resort to the court 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 ancient as the common law itself.16 For as the king was bound to prosecute, or at 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 of his government, or against the public peace and good order, they were at liberty, without waiting for any farther 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 these informations (of every kind) are confined by the constitutional law to mere misdemeanors only: for, wherever any capital offense 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 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,17 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.

UPON this dissolution the old common law18 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.19 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.20 It is true, Sir Matthew Hale, who presided in this court soon after the time of such revival, is said21 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.22 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,23 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. & 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 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.

THERE is one species of informations, still farther regulated by statute 9 Ann. c. 20. viz. those in the nature of a writ of quo warranto; which was shown in the preceding volume,24 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 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.

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.25 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 offense 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 voluminous compilations.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,27 from our ancestors, the ancient Germans; among whom according to Tacitus,28luitur homicidium certo armentorum ac pecorum numero; recipitque satisfactionem universa domus.”29 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.30 And thus we find in our Saxon laws (particularly those of king Athelstan31) the several weregilds, for homicide established in progressive order, from the death of the ceorl or peasant, up to that of the king himself.32 And in the laws of king Henry I,33 we have an account of what other offenses were then redeemable by weregild, and what were not so.34 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 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,35 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 battle awarded in the court of chivalry, on such an appeal of treason:36 but the first was virtually abolished37 by the statutes 5 Edw. III. c. 9. and 25 Edw. III. c. 24. and 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 arson. And for these, as well as for mayhem, the persons robbed, ravished, maimed, or whose houses are burnt, may institute this private process. The only crime against one’s relation, 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 confined, by an ordinance of king Henry the first, to the four nearest degrees of blood.38 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 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 “praescriptio annalis, quae currit adversus actorem, si de homicida ei non constet intra annum a caede facta, nec quenquam interea arguat et accuset.”39

THESE appeals may be brought, previous to any indictment; and, if the appellee be acquitted thereon, he cannot be afterwards 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:40 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 may, by virtue of statute 3 Hen. VII. c. 1. be prosecuted by appeal for the same felony, not having as yet been punished for it: though, if he has been found guilty of manslaughter on an indictment, and has had the benefit of clergy, and suffered the judgment of the law, he cannot afterwards be appealed. For it is a maxim of law, that “nemo bis punitur pro eodem delicto.

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.41 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.42 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:43 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 untutored inhabitants of America: as if the finger of nature had pointed it out to mankind, in their rude and uncultivated state. However, the punishment of the offender may be remitted and discharged by the concurrence of all parties interested; and as the king by his pardon may frustrate an indictment, so the appellant by his release may discharge an appeal:44nam quilibet potest 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 information or appeal.

Blackstone’s Footnotes (Tucker’s notes not yet added)

     1.    Lamb. Eirenarch. 1. 4. c. 5.
     2.    See appendix. § 1.
     3.    2 Hal. P. C. 154.
     4.    Ibid. 155.
     5.    Wilk. LL. Angl. Sax. 117.
     6.    State Trials. IV. 183.
     7.    2 Hal. P. C. 161.
     8.    Fost. 249.
     9.    See Vol. III. pag. 321.
   10.    5 Rep. 122.
   11.    Stiernh. de jure Sueon. L. 3. c. 5.
   12.    2 Hal. P. C. 149.
   13.    Lord Kayms. I. 331.
   14.    See Vol. III. pag. 160.
   15.    2 Hawk. P. C. 260.
   16.    1 Show. 118.
   17.    1 And. 157.
   18.    5 Mod. 464.
   19.    Styl. Rep. 217. 245. Styl. pract. Reg. tit. Information. pag. 187. (edit. 1657.) 2 Sid. 71. 1 Sid. 152.
   20.    Stat. 16 Car. I. c. 10. § 6.
   21.    5 Mod. 460.
   22.    1 Saund. 301. 1 Sid. 174.
   23.    M. 1. W. & M. 5 Mod. 459. Comb. 141. Farr. 361. 1 Show. 106.
   24.    See Vol. III. pag. 262.
   25.    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.
   26.    2 Hawk. P. C. ch. 23.
   27.    Stiernh. de jure Sueon. l. 3. c. 4.
   28.    de M. G. c. 21.
   29.    And in another place, (c. 12.) “Delictis, pro modo poenarum, equorum pecorumque numero convicti mulctantur. Pars mulctae regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus, exsolvitur.”
   30.    Spenser’s state of Ireland, pag. 1513. edit. Hughes.
   31.    Tudic. Civit. Lund. Wilk. 71.
   32.    The weregild of a ceorl was 266 thrymsas, that of the king 30000; each thrymsa 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.
   33.    c. 12.
   34.    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 then only to revenge the slaughter of their kinsmen; and if they rather choose (as they generally do) to compound the matter for money, nothing more is said about it. (Lady M. W. Montague. Lett. 42.)
   35.    Britt. c. 22.
   36.    By Donald lord Rea against David Ramsey. (Rashw. Vol. 2. Part. 2. pag. 122.)
   37.    1 Hal. P. C. 349.
   38.    Mirr. C. 2. § 7.
   39.    Stiernh. de jure Goth. l. 3. c. 4.
   40.    Ibid. l. 1. c. 5.
   41.    2 Hawk. P. C. 392.
   42.    LL. Edm. § 3.
   43.    M. 11 Hen. IV. 12. 3 Inst. 131.
   44.    1 Hal. P. C. 9.