was required in the most minute particular of the instrument: so that the most immaterial omission, or even a clerical error, not unfrequently proved fatal to the indictment, and set a criminal at large.

Two circumstances tended greatly to encourage technical objections to indictments, and to induce the judges to require from the criminal pleader the most rigid and unfailing exactness, and to make even the most trivial variance, omission or error a ground for quashing the indictment. The first was the rigorous character of the ancient Criminal Code of this country so disproportioned were punishments to offences, so harsh and inhuman in some cases were the sentences of the law, that the judges, on every opportunity, interposed their power to mitigate its severity, and in favorem vitæ required a degree of exactness and precision in indictments which was rarely attainable. This disposition of the judges used to be appealed to by the defenders of our criminal jurisprudence, against the advocates of law reform, as a proof that the law, though seemingly so stern, was in practice mercifully administered. "I am free to confess," remarks Wentworth (b), "that to a partial observer, and to one who does not as he reads bear in mind the mode of its administration, the imputation of barbarism upon the criminal code must appear but too well deserved." The second circumstance which operated on the minds of the judges in favour of such technical strictness in indictments was, that, until the reign of Will. 4, on charges of treason and felony, a prisoner was not allowed the benefit of counsel (c). In Doct. & Stud., c. xlviii., the student remarks, "The law is as thou sayest,

(b) Wentw. Pl. Crim. Div. 1797; and see Fortescue de Laud. cap. 27. (c) The precise time when this rule was introduced is uncertain : when The Mirror was written serjeants were accustomed to defend prisoners “in indictments and appeals of felony.”—Chap. iii. s. 1.

that he shall have no counsel; but then the law is farther that in all things that pertain to the order of pleading the judges shall so instruct and order him that he shall run into no jeopardy by his mispleading." These motives constantly operating in unison with the general spirit of special pleading, which even Lord Coke, in his day, complained of as giving scope to "curious and nice exceptions tending to the overthrow or delay of justice," produced a state of things in the criminal courts in which moral right and wrong, and the eternal principles of common sense and justice, were too frequently considered as secondary to mere technical rules.

An indictment which charged, "quod dedit mortalem plagam circa pectus," was held to be bad; but one which described the mortal injury as inflicted "in sinistra parte ventris circa umbillicum," good (d). So it was fatal to omit a description of the depth or breadth of the wound, and an indictment which charged that a prisoner feloniously "carnaliter cognovit" the victim of his lust, was quashed because it lacked the word of art, " rapuit" (e); and it was ground for demurrer if the indictment omitted to state in which hand the prisoner held the weapon with which a murder was committed. Illustrations of this kind could be quoted from the books without number. Even the omission of the letter "7" in "burglariter" (f) was ground for a judgment against the crown. Nor have the instances of narrow and absurd adherence to technical accuracy been confined to the times when indictments were composed in law Latin. In our own day we have seen objections to an indictment that it commenced, The jurors "of" our lady the queen, instead of "for;" we have seen it solemnly argued before the fifteen judges, whether, according to the

(d) Hale's Sum. 207.

(e) Ib. 207.

(f) Ib. 207.

grammatical construction of an indictment, charging a prisoner with wilful murder, it did not appear that the musket itself was "shot, discharged and sent forth," instead of the bullet from the musket, which it was proved was the cause of death. Prefixing the word "whereas" to the statement of the offence invalidated the indictment (g); and, in the year of grace 1851 (h), we have seen a conviction quashed because the person whose property was proved to have been stolen was described in the indictment as "Darius" instead of "Trius." If the same latitude of amendment, as was given to Civil Courts by 3 & 4 Will. 4, c.42, ss. 23, 24, had been conferred on Courts of Criminal Jurisdiction, public justice, and the profession whose members ought to be its ministers, would have been spared some scandal.

At common law there was a power of amending formal errors in indictments. Hawkins says that it seems anciently to have been the common practice, where an indictment appeared insufficient either for its uncertainty or want of proper legal words, to award a process against the grand jury to come into court and amend it; he adds, that in his day, it was usual, while the grand jury who found the bill were before the court, to amend the indictment by their consent in a matter of form. A trace of this old salutary rule is still in existence; it has always been the practice for the clerk of the peace, at sessions, on receiving the bills from the grand jury, to say, "You agree that the Court shall amend matters of form, and not alter in matters of substance."

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An important step in the right direction was effected by the statute 9 Geo. 4, c. 15, which enabled the courts of terminer and general gaol delivery (but not of quarter ses

(g) 2 Lord Raym. 1363.

oyer,

(h) Reg. v. Davis, Court of Criminal Appeal, 26th April, 12 Jur. 546.

indictment or

sions) to amend the record at the trial in any information for any misdemeanor where a variance appeared between any matter in writing or in print produced in evidence and the recital thereof on the record. The principle of this useful statute was extended to cases of felony by 11 & 12 Vict. c. 46, introduced in the House of Commons by Mr. Talbot Baines, Q. C.

By another act of the reign of George the Fourth (i), it was provided that no judgment should be stayed or reversed for the want of the averment of any matter unnecessary to be proved, nor for the omission of the words "as appears by the record," "with force and arms," "against the peace," and other trivial matters of this kind. But these defects could still be taken advantage of by demurrer, and when demurred to, were fatal (k).

The doctrine of merger, originating in the same spirit of technical strictness, frequently worked striking perversions of justice. If a party were indicted for an assault or a misdemeanor in attempting to commit a felony, and on the trial a felony were proved, the former merged in the latter, and the party was acquitted, though liable to be indicted again. Take an example, before Buller, J.:-Assault charged, rape proved, acquittal directed (1)! All questions respecting merger will now be finally put an end to by the present statute, which provides (s. 10), that no person indicted for misdemeanor shall be acquitted, if the offence proved should amount to felony.

(i) 7 Geo. 4, c. 64.

(k) See the case of Reg. v. Fenwick, before Cresswell, J., at York Winter Gaol Delivery, 1849, 2 Car. & K. 915, and the cases there cited. (1) 1 East, P. C. 411; and see 9 Car. & P. 118; ib. 31; 8 Car. & P. 641; 1 Car. & Kir. 393; see note, p. 28.

The particularity (m) with which offences were described in our indictments has deservedly provoked the ridicule of poets and satirists. Ancient precedents were adhered to simply because they were ancient; their prolixity, vain repetitions, and contradictory statements tended only to confuse the jury and multiply the chances of failure. The present statute, besides giving the salutary powers of amendment referred to, declares that in future a more general form of accusation shall be sufficient in indictments for some of the most usual classes of crimes. The legislature has determined that the time has at length arrived, when the technical strictness heretofore observed may, without detriment to public justice or hardship to persons accused, be relaxed, and a practice be adopted more in harmony with the spirit of a liberal and progressing age. The motives which formerly operated on the minds of the judges, in favour of a rigid adherence to technical rules, are no longer in operation. Owing to the wise reforms advocated or accomplished by Romilly, Brougham, Denman, Grey, Peel and Russell, punishments, by their aggravated and disproportionate character, no longer excite sympathy for criminals nor bias the feelings of judges. All prisoners are now allowed to make a full defence by counsel; and they are entitled by law to a copy of the examinations of the witnesses on whose depositions they have been committed for trial (n).

The present statute cannot fail to be attended with important and beneficial consequences. The noble lord who now so worthily fills the seat of Lord Chief Justice of

(m) This rule was not, however, without exceptions. In the following cases, general statements of the offences were held to be sufficient; viz. the cases of Barrators, Common Scolds, Disorderly Houses, of Inciting a Soldier to Mutiny, or Inciting a Servant to rob his Master. (1 T. R. 754; 2 T. R. 586; 2 B. & Ald. 205; 1 Bos. & Pul. 180.) (n) 6 & 7 Will. 4, c. 114.