[of these Acts was soon, indeed, repealed by statute 1 Henry VIII. c. 6; but the court of Star-Chamber 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 authority of the Court of King's Bench, as the custos morum of the nation (h), being found necessary to reside somewhere for the peace and good government of the kingdom, was again revived in practice (i). And it is observable, that in the same Act of Parliament which abolished the court of StarChamber, 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 (k). It is true, Sir Matthew Hale, who presided in this court soon after the time of such revival, is said to have been no friend to this method of prosecution (1): 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 (m). 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 Crown, they subjected the prosecutor to no costs, though on trial they proved to be groundless. This oppressive use of them in the time 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 (n). But Sir John Holt, who then presided there, and all the judges, were clearly of opinion that this proceeding was

(h) See Prynn's case, 5 Mod. 464. (i) Styl. Rep. 217, 245; Styl. Pract. tit. "Information," p. 187, (edit. 1657); Fountain's case, 1 Sid. 152; Dudley's case, 2 Sid. 71.

(k) Stat. 16 Car. 1, c. 10, s. 6.

(1) Prynn's case, 5 Mod. 460. (m) 1 Saund. 301; R. v. Starling, 1 Sid. 174.

(n) M. 1 W. & M., Prynn's case, ubi sup.; Comb. 141; Far. 361; R. v. Berchet, 1 Show. 106.

[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 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 that 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 (o). 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 suit of the Crown, filed by the attorney-general, are nowise restrained thereby.]

Besides these methods of prosecution, there formerly existed another, which was merely at the suit of the subject, and called an appeal, demanding punishment on account of the private injury rather than the public offence. This proceeding, (involving, as we shall see hereafter, a trial by battel, instead of by jury,) though leading, in case of conviction, to the same punishment as if the offender had been indicted, might yet be remitted by the private prosecutor; and probably originated, says Blackstone (p), in those times [when a private pecuniary satisfaction, called a weregild (q), was constantly paid to the party injured, or his relations, to expiate enormous offences: a custom derived to us, in common with other northern nations, from our ancestors, the antient Germans; among

(0) As to the costs of a criminal information for libel, see Reg. v. Latimer, 20 L. J. (N. S.) Q. B. 129.

(p) 4 Bl. Com. 313.

(q) In our Saxon Laws, particularly those of Athelstan, (Judic. Civ. ::

Lund. Wilk. 71,) we find the several weregilds for homicide established in progressive order, from the death of the ceorl or peasant to that of the king himself. And see the laws of Hen. 1, c. 12.

&G 8

[whom, according to Tacitus, "luitur homicidium certo armentorum ac pecorum numero; recipitque satisfactionem universa domus” (r).] Appeals were allowed in murder, larceny, rape, arson and mayhem (s). They were not however confined to these cases of private injury, [for it was also antiently permitted to any subject to appeal another subject of high treason, either in the courts of common law or in parliament: or, (for treasons committed beyond the seas,) in the court of the high constable and marshal (t).] But these appeals for treason were, in the opinion of Sir M. Hale, taken away by 5 Edward III. c. 9 ; 25 Edward III. c. 4; and 1 Henry IV. c. 14 (u). And though the remaining appeals continued in force till our own day, yet now, by 59 Geo. III. c. 46, it is enacted, that it shall thenceforth not be lawful for any person to sue an appeal for treason, murder, felony, or other offence; any law or usage to the contrary notwithstanding (x).

An indictment and an information, therefore, are the only methods now extant in the laws of England, for the prosecution of offences (y); of which that by indictment is the most general. [We shall therefore confine our subsequent observations principally to this method; but with some reference, also, as occasion may arise, to the course of proceeding by information.]

(r) De Mor. Germ. c. 21. And in another place, c. 12: " Delictis, pro modo pœnarum, equorum pecorumque numero convicti mulctantur. Pars mulctæ regi vel civitati; pars ipsi qui vindicatur, vel propinquis ejus, exsolvitur."

In the same manner, by the Irish Brehon Law, a composition by pecuniary recompence might be made between a murderer and the friends of the deceased. Spenser, St. of Ireland, p. 1513 (edit. Hughes.)

(s) 4 Bl. Com. p. 314. Of the appeal in case of murder, we may remark, that it might be brought either by the wife for the death of her husband; or by the heir male within four degrees of blood, for the

death of his ancestor. (Ibid.)

(t) We are informed by Blackstone (vol. iv. p. 314), that as late as the year 1631 there was a trial by battel awarded in the court of chivalry, on an appeal of treason beyond the seas. This was the case of Donald Lord Rea v. David Ramsey (Rushw. vol. ii. part ii. p. 112). (u) 1 Hale, P. C. 349.

(x) See Abraham Thornton's case, 1 B. & Ald. 405.

(y)" Prosecution" is here to be understood in the sense which we have latterly had in view (vide sup. pp. 424, 438), and which does not include impeachments (sup. p. 379), or summary convictions (sup. p. 409).

CHAPTER XIX.

OF PROCESS: AND HEREIN, OF CERTIORARI.

[WE are next in the fourth place to inquire into the manner of issuing process, after indictment found, to bring in the accused to answer it (a). We have hitherto supposed the offender to be in custody,] or else held to bail, [before the finding of the indictment; in which cases, he is immediately after the finding, or as soon as convenience permits, to be arraigned thereon. But if he has fled or secretes himself,] so as to avoid the operation of the warrant; or if no warrant has ever been issued for his arrest, or at least no commitment to take his trial has taken place:-[still an indictment may be preferred against him in his absence: since, were he present, he could not be heard before the grand jury against it. And if it be found, then process must issue to bring him into court,] to appear, or be arraigned. [For the indictment cannot be tried unless he appears ;] according to the rule of justice in all cases, [and the express provision of statute 28 Edw. III. c. 3, in capital ones, that no man shall be put to death without being brought to answer by due process of law.]

In general, the process on an indictment is by writ of capias, where the person charged is not in custody, and in cases not otherwise provided for by statute (b). In misdemeanors it is, also, the practice upon an indictment found during the assizes or sessions, to issue a bench warrant, signed by a judge or two justices of the peace, to appre

(a) Vide sup. p. 424. As to the term process, vide sup. vol. 1. p. 583.

(b) 25 Edw. 3, c. 14; 2 Hale, P. C. 195; R. v. Yandell, 4 T. R. 521; 1 Chit. Cr. 339.

VOL. IV.

H H

hend the defendant (c). And whenever any person is charged with any offence, (not being treason or felony,) for which he may be prosecuted by indictment, or information, in the Court of Queen's Bench;-and it shall be made to appear to any judge of that court, by affidavit or by certificate, that an indictment has been found, or information filed, in such court, against the party, for such offence;-it is made lawful by 48 Geo. III. c. 58, s. 1, for such judge to issue his warrant to bring the party before him, in order to his being bound, with sufficient sureties, to appear and answer the indictment or information (d). But process on any indictment found, may now, under the provisions of a later statute, be by warrant from justices of the peace, instead of suing out a capias, or bench warrant, or proceeding under the provisions of the Act of Geo. III. For by 11 & 12 Vict. c. 42, s. 3, it is enacted, that where an indictment shall have been found for any indictable offence, in any court of oyer and terminer, or general gaol delivery, or general or quarter sessions of the peace, against any person then at large,—a certificate shall be granted by the proper officer to the prosecutor, of such indictment having been found; and upon production of such certificate to any justice, or justices, of the peace for the place where the offence is alleged in the indictment to have been committed, or in which the person indicted is or is suspected to be, such justice or justices shall issue a warrant to apprehend such person and cause him to be brought up to be dealt with according to law: and, upon its being proved that he is the same person as named in the indictment, shall, without further inquiry, commit him for trial, or admit him to bail. Or if the person against whom the indictment is found, shall be confined in any gaol or prison for any other offence, then, upon its being proved that he is the same person as named in the indictment, such justice or justices shall issue their warrant to the gaoler, command(c) 1 Chit. Cr. L. 339. (d) 48 Geo. 3, c. 58, s. 1.