CHAPTER THE TWENTY THIRD.
OF THE SEVERAL MODES OF PROSECUTION.

THE next ftep towards the punifhment of offenders is their profecution, or the manner of their formal accufation. And this is either upon a previous finding of the fact by an inqueft or grand jury ; or without fuch previous finding. The former way is either by prefentment, or indictment.

I. A prefentment, generally taken, is a very comprehenfive term ; including not only prefentments properly fo called, but alfo inquifitions of office, and indictments by a grand jury. A prefentment, properly fpeaking, is the notice taken by a grand jury of any offence from their own knowlege or obfervation ^a, without any bill of indictment laid before them at the fuit of the king. As, the prefentment of a nufance, a libel, and the like ; upon which the officer of the court muft afterwards frame an indictment, before the party prefented as the author can be put to anfwer it. An inquifition of office is the act of a jury, fummoned by the proper officer to enquire of matters relating to the crown, upon evidence laid before them. Some of thefe are in themfelves convictions, and cannot afterwards be traverfed or denied ; and therefore the inqueft, or jury, ought to hear all

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^a Lamb. Eirenarch. 1. 4. c. 5.
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That
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that can be alleged on both fides. Of this nature are all inquifitions of felo de fe ; of flight in perfons accufed of felony ; of deodands, and the like ; and prefentments of petty offences in the fheriff's tourn or court-leet, whereupon the prefiding officer may fet a fine. Other inquifitions may be afterwards traverfed and examined ; as particularly the coroner's inquifition of the death of a man, when it finds any one guilty of homicide : for in fuch cafes the offender fo prefented muft be arraigned upon this inquifition, and may difpute the truth of it ; which brings it to a kind of indictment, the moft ufual and effectual means of profecution, and into which we will therefore enquire a little more minutely.

II. AN indictment ^b is a written accufation of one or more perfons of a crime or mifdemefnor, preferred to, and prefented upon oath by, a grand jury. To this end the fheriff of every county is bound to return to every feffion of the peace, and every commiffion of oyer and terminer, and of general gaol delivery, twenty four good and lawful men of the county, fome out of every hundred, to enquire, prefent, do, and execute all thofe things, which on the part of our lord the king fhall then and there be commanded them ^c. They ought to be freeholders, but to what amount is uncertain ^d : which feems to be cafus omiffus, and as proper to be fupplied by the legiflature as the qualifications of the petit jury ; which were formerly equally vague and uncertain, but are now fettled by feveral acts of parliament. However, they are ufually gentlemen of the beft figure in the county. As many as appear upon this panel, are fworn upon the grand jury, to the amount of twelve at the leaft, and not more than twenty three ; that twelve may be a majority. Which number, as well as the conftitution itfelf, we find exactly defcribed, fo early as the laws of king Ethelred ^e. “ Exeant feniores duodecim thani, et praefectus cum eis, et jurent fuper fanctuarium quod eis in manus datur, quod nolint ullum innocentem

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^b See appendix. § 1.
^c 2 Hal. P. C. 154.
^d Ibid. 155.
^e Wilk. LL. Angl. Sax. 117.
{FE}
O o 2
“ accufare,
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“ accufare, nec aliquem noxium celare.” In the time of king Richard the firft (according to Hoveden) the procefs of electing the grand jury, ordained by that prince, was as follows : four knights were to be taken from the county at large, who chofe two more out of every hundred ; which two affociated to themfelves ten other principal freemen, and thofe twelve were to anfwer concerning all particulars relating to their own diftrict. This number was probably found too large and inconvenient ; but the traces of this inftitution ftill remain, in that fome of the jury muft be fummoned out of every hundred. This grand jury are previoufly inftructed in the articles of their enquiry, by a charge from the judge who prefides upon the bench. They then withdraw, to fit and receive indictments, which are preferred to them in the name of the king, but at the fuit of any private profecutor ; and they are only to hear evidence on behalf of the profecution : for the finding of an indictment is only in the nature of an enquiry or accufation, which is afterwards to be tried and determined ; and the grand jury are only to enquire upon their oaths, whether there be fufficient caufe to call upon the party to anfwer it. A grand jury however ought to be thoroughly perfuaded of the truth of an indictment, fo far as their evidence goes ; and not to reft fatisfied merely with remote probabilites : a doctrine, that might be applied to very oppreffive purpofes ^f.

THE grand jury are fworn to enquire, only for the body of the county, pro corpore comitatus ; and therefore they cannot regularly enquire of a fact done out of that county for which they are fworn, unlefs particularly enabled by act of parliament. And to fo 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, becaufe no complete act of felony was done in any one of them : but by ftatute 2 & 3 Edw. VI. c. 24. he is now indictable in the county where the party died. And fo in fome other cafes : as particu-

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^f State Trials. IV. 183.
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larly,
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larly, where treafon is committed out of the realm, it may be enquired of in any county within the realm, as the king fhall direct, in purfuance of ftatutes 26 Hen. VIII. c. 13. 35 Hen. VIIII. c. 2. and 5 & 6 Edw. VI. c. 11. But, in general, all offences muft be enquired 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 groundlefs accufation, they ufed formerly to endorfe on the back of the bill, “ ignoramus ;” or, we know nothing of it ; intimating, that though the facts might poffibly be true, that truth did not appear to them : but now, they affert in Englifh, more abfolutely, “ not a true bill ;” and then are party is difcharged without farther anfwer. But a frefh bill may afterwards be preferred to a fubfequent grand jury. If they are fatisfied of the truth of the accufation, they then endorfe upon it, “ a true bill ;” antiently, “ billa vera.” The indictment is then faid to be found, and the party ftands indicted. But, to find a bill, there muft at leaft twelve of the jury agree : for fo tender is the law of England of the lives of the fubjects, that no man can be convicted at the fuit of the king of any capital offence, unlefs by the unanimous voice of twenty four of his equals and neighbours : that is, by twelve at leaft of the grand jury, in the firft place, affenting to the accufation ; and afterwards, by the whole petit jury, of twelve more, finding him guilty upon his trial. But, if twelve of the grand jury affent, it is a good prefentment, though fome of the reft difagree ^g. And the indictment, when fo found, is publicly delivered into court.

INDICTMENTS muft have a precife and fufficient certainty. By ftatute 1 Hen. V. c. 5. all indictments muft fet forth the chriftian name, firname, and addition of the ftate and degree, myftery, town, or place, and the county of the offender : and all this to identify his perfon. The time, and place, are alfo to be afcertained, by naming the day, and townfhip, in which the fact was committed : though a miftake in thefe points is in general

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^g 2 Hal. P. C. 161.
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not
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not held to be material, provided the time be laid previous to the finding of the indictment, and the place to be within the jurifdiction of the court. But fometimes the time may be very material, where there is any limitation in point of time affigned for the profecution of offenders ; as by the ftatute 7 Will. III. c. 3. which enacts, that no profecution fhall be had for any of the treafons or mifprifions therein mentioned (except an affaffination defigned or attempted on the perfon of the king) unlefs the bill of indictment be found within three years after the offence committed ^h : and, in cafe of murder, the time of the death muft be laid within a year and a day after the mortal ftroke was given. The offence itfelf muft alfo be fet forth with clearnefs and certainty : and in fome crimes particular words of art muft be ufed, which are fo appropriated by the law to exprefs the precife idea which it entertains of the offence, that no other words, however fynonymous they may feem, are capable of doing it. Thus, in treafon, the facts muft be laid to be done, “ treafonably, and againft his allegiance ;” antiently “ proditorie et contra ligeantiae fuae debitum :” elfe the indictment is void. In indictments for murder, it is neceffary to fay that the party indicted “ murdered,” not “ killed” or “ flew,” the other ; which till the late ftatute was expreffed in Latin by the word “ murdravit ⁱ. In all indictments for felonies, the adverb “ felonioufly, felonice,” muft be ufed ; and for burglaries alfo, “ burglariter,” or in Englifh, “ burglarioufly :” and all thefe to afcertain the intent. In rapes, the word “ rapuit,” or “ ravifhed,” is neceffary, and muft not be expreffed by any periphrafis ; in order to render the crime certain. So in larcinies alfo, the words “ felonice cepit et afportavit, felonioufly took and carried away,” are neceffary to every indictment ; for thefe only can exprefs the very offence. Alfo in indictments for murder, the length and depth of the wound fhould in general be expreffed, in order that it may appear to the court to have been of a mortal nature : but if it goes through the body, then it's dimenfions are immaterial, for that is apparently fufficient to have been the caufe of

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^h Foft. 249.
ⁱ See Vol. III. pag. 321.
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the
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the death. Alfo where a limb, or the like, is abfolutely cut off, there fuch defcription is impoffible ^k. Laftly, in indictments the value of the thing, which is the fubject or inftrument of the offence, muft fometimes be expreffed. In indictments for larcinies this is neceffary, that it may appear whether it be grand or petit larciny ; and whether entitled or not to the benefit of clergy : in homicide of all forts it is neceffary ; as the weapon, with which it is committed, is forfeited to the king as a deodand.

THE remaining methods of profecution are without any previous finding by a jury, to fix the authoritative ftamp of verifimilitude upon the accufation. One of thefe, by the common law, was when a thief was taken with the mainour, that is, with the thing ftolen upon him, in manu. For he might, when fo detected flagrante delicto, be brought into court, arraigned, and tried, without indictment : as by the Danifh law he might be taken and hanged upon the fpot, without accufation or trial ^l. But this proceeding was taken away by feveral ftatutes in the reign of Edward the third ^m : though in Scotland a fimilar procefs remains to this day ⁿ. So that the only fpecies of proceeding at the fuit of the king, without a previous indictment or prefentment by a grand jury, now feems to be that of information.

III. INFORMATIONS are of two forts ; firft, thofe which are partly at the fuit of the king, and partly at that of a fubject ; and fecondly, fuch as are only in the name of the king. The former are ufually brought upon penal ftatutes, which inflict a penalty upon conviction of the offender, one part to the ufe of the king, and another to the ufe of the informer ; and are a fort of qui tam actions, ( the nature of which was explained in a former volume ^o) only carried on by a criminal infte. of a civil procefs : upon which I fhall therefore only obferve, that

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^k 5 Rep. 122.
^l Stiernh. de jure Sueon. L. 3. c. 5.
^m 2 Hal. P. C. 149.
ⁿ Lord Kayms. I. 331.
^o See Vol. III. pag. 160.
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by
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by the ftatute 31 Eliz. c. 5. no profecution upon any penal ftatute, the fuit and benefit whereof are limited in part to the king and in part to the profecutor, can be brought by any common informer after one year is expired fince the commiffion of the offence ; nor on behalf of the crown after the lapfe of two years longer ; nor, where the forfeiture is originally given only to the king, can fuch profecution be had after the expiration of two years from the commiffion of the offence.

THE informations, that are exhibited in the name of the king alone, are alfo of two kinds : firft, thofe which are truly and properly his own fuits, and filed ex officio by his own immediate officer, the attorney general : fecondly, thofe in which, though the king is the nominal profecutor, yet it is at the relation of fome private perfon or common informer ; and they are filed by the king's coroner and attorney in the court of king's bench, ufually called the mafter of the crown-office, who is for this purpofe the ftanding officer of the public. The objects of the king's own profecutions, filed ex officio by his own attorney general, are properly fuch enormous mifdemefnors, as peculiarly tend to difturb or endanger his government, or to moleft or affront him in the regular difcharge of his royal functions. For offences fo high and dangerous, in the punifhment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate profecution, without waiting for any previous application to any other tribunal. A power, fo neceffary, not only to the eafe and fafety but even to the very exiftence of the executive magiftrate, ws originally referved in the great plan of the Englifh conftitution, which has wifely provided for the due prefervation of all it's parts. The objects of the other fpecies of informations, filed by the mafter of the crown-office upon the complaint or relation of a private fubject, are any grofs and notorious mifdemefnors, riots, batteries, libels, and other immoralities of an atrocious kind ^p, not peculiarly tending to difturb

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^p 2 Hawk. P. C. 260.
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the
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The government (for thofe are left to the care of the attorney general) but which, on account of their magnitude or pernicious example, deferve the moft public animadverfion. And when an information is filed, either thus, or by the attorney general ex officio, it muft be tried by a petit jury of the county where the offence arifes : after which, if the defendant be found guilty, the muft refort to the court for his punifhment.

THERE can be no doubt but that this mode of profecution, by information (or fuggeftion) filed on record by the king's attorney general, or by his coroner or mafter of the crown-office in the court of king's bench, is as antient as the common law itfelf ^q. For as the king was bound to profecute, or at leaft to lend the fanction of his name to a profecutor, whenever a grand jury informed him upon their oaths that there was a fufficient ground for inftituting a criminal fuit ; fo, when thefe his immediate officers were otherwife fufficiently affured that a man had committed a grofs mifdemefnor, either perfonally againft the king of his government, or againft 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 fuggeftion on record, and to carry on the profecution in his majefty's name. But thefe informations (of every kind) are confined by the conftitutional law to mere mifdemefnors only : for, wherever any capital offence is charged, the fame law requires that the accufation be warranted by the oath of twelve men, before the party fhall be put to anfwer it. And, as to thofe offences, in which informations were allowed as well as indictments, fo long as they were confined to this high and refpectable jurifdiction, and were carried on in a legal and regular courfe in his majefty's court of king's bench, the fubject had no reafon to complain. The fame notice was given, the fame procefs was iffued, the fame pleas were allowed, the fame trial by jury was had, the fame judgment was given by the fame judges, as if the profecution had originally been by indictment. But

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^q 1 Show. 118.
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VOL. IV.
P p
when
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when the ftatute 3 Hen. VII. c. 1. had extended the jurifdiction of the court of ftar-chamber, the members of which were the fole judges of the law, the fact, and the penalty ; and when the ftatute 11 Hen. VII. c. 3. had permitted informations to be brought by any informer upon any penal ftatute, not extending to life or member, at the affifes or before the juftices of the peace, who were to hear and determine the fame according to their own difcretion ; then it was, that the legal and orderly jurifdiction of the court of king's bench fell into difufe and oblivion, and Empfon and Dudley (the wicked inftruments of king Henry VII) by hunting out obfolete penalties, and this tyrannical mode of profecution, with other oppreffive devices ^r, continually haraffed the fubject and fhamefully inriched the crown. The latter of thefe acts was foon indeed repealed by ftatute 1 Hen. VIII. c. 6. but the court of ftar-chamber continued in high vigour, and daily increafing it's authority, for more than a century longer ; till finally abolifhed by ftatute 16 Car. I. c. 10.

UPON this diffolution the old common law ^s authority of the court of king's bench, as the cuftos morum of the nation, being found neceffary to refide fomewhere for the peace and good government of the kingdom, was again revived in practice ^t. And it is obfervable, that, in the fame act of parliament which abolifhed the court of ftar-chamber, a conviction by information is expreffly reckoned up, as one of the legal modes of conviction of fuch perfons, as fhould offend a third time againft the provifions of that ftatute ^u. It is true, fir Matthew Hale, who prefided in this court foon after the time of fuch revival, is faid ^w to have been no friend to this method of profecution : and, if fo, the reafon of fuch his diflike was probably the ill ufe, which the mafter of the crown-office then made of his authority, by permitting the fubject to be harraffed with vexatious informations,

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^r 1 And. 157.
^s 5 Mod. 464.
^t Styl. Rep. 217. 245. Styl. pract. Reg. tit. Information. pag. 187. (edit. 1657.) 2 Sid. 71. 1 Sid. 152.
^u Stat. 16 Car. I. c. 10. §. 6.
^w 5 Mod. 460.
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when
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whenever applied to by any malicious or revengeful profecutor ; rather than his doubt of their legality, or propriety upon urgent occafions ^x. For the power of filing informations, without any control, then refided in the breaft of the mafter : and, being filed in the name of the king, they fubjected the profecutor to no cofts, though on trial they proved to be groundlefs. This oppreffive ufe of them, in the times preceding the revolution, occafioned a ftruggle, foon after the acceffion of king William ^y, to procure a declaration of their illegality by the judgment of the court of king's bench. But fir John Holt, who then prefided 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 ftatute 4 & 5 W. & M. c. 18. which enacts, that the clerk of the crown fhall not file any information without exprefs direction from the court of king's bench : and that every profecutor, permitted to promote fuch information, fhall give fecurity by a recognizance of twenty pounds (which now feems to be too fmall a fum) to profecute the fame with effect ; and to pay cofts to the defendant, in cafe he be acquitted thereon, unlefs the judge, who tries the information, fhall certify there was reafonable caufe for filing it ; and, at all events, to pay cofts, unlefs the information fhall be tried within a year after iffue joined. But there is a provifo in this act, that it fhall not extend to any other informations, than thofe which are exhibited by the mafter of the crown-office : and, confequently, informations at the king's own fuit, filed by his attorney general, are no way reftrained thereby.

THERE is one fpecies of informations, ftill farther regulated by ftatute 9 Ann. c. 20. viz. thofe in the nature of a writ of quo warranto ; which was fhewn in the preceding volume ^z, to be a remedy given to the crown againft fuch as had ufurped or intruded into any office or franchife. The modern information

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^x 1 Saund. 301. 1 Sid. 174.
^y M. 1. W. & M. 5 Mod. 459. Comb. 141. Farr. 361. 1 Show. 106.
^z See Vol. III. pag. 262.
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P p 2
tends
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tends to the fame purpofe as the antiend writ, being generally made ufe of to try the civil rights of fuch franchifes ; though it is commenced in the fame manner as other informations are, by leave of the court, or at the will of the attorney-general : being properly a criminal profecution, in order to fine the defendant for his ufurpation, as well as to ouft him from his office ; yet ufually confidered at prefent as merely a civil proceeding.

THESE are all the methods of profecution at the fuit of the king. There yet remains another, which is merely at the fuit of the fubject, and is called an appeal.

IV. AN appeal, in the fenfe wherein it is here ufed, does not fignify any complaint to a fuperior court of an injuftice done by an inferior one, which is the general ufe of the word ; but it here means an original fuit, at the time of it's firft commencement ^a. An appeal therefore, when fpoken of as a criminal profecution, denotes an accufation by a private fubject againft another, for fome heinous crime ; demanding punifhment on account of the particular injury fuffered, rather than for the offence againft the public. As this method of profecution is ftill in force, I cannot omit to mention it : but, as it is very little in ufe, on account of the great nicety required in conducting it, I fhall treat of it very briefly ; referring the ftudent for more particulars to other voluminous compilations ^b.

THIS private procefs, for the punifhment of public crimes, had probably it's original in thofe times, when a private pecuniary fatisfaction, called a weregild, was conftantly paid to the party injured, or his relations, to expiate enormous offences. This was a cuftom derived to us, in common with other northern nations ^c, from our anceftors, the antient Germans ; among

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^a It is derived from the French, “ appeller,” the verb active, which fignifies to call upon, fummon, or challenge one ; and not the verb neuter, which fignifies the fame as the ordinary fenfe of “ appeal” in Englifh.
^b 2 Hawk. P. C. ch. 23.
^c Stiernh. de jure Suean. l. 3. c. 4.
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whom
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whom according to Tacitus ^d, “ luitur homicidium certo armentorum ac pecorum numero ; recipitque fatisfactionem univerfa domus ^e.” In the fame manner by the Irifh Brehon law, in cafe of murder, the Brehon or judge was ufed to compound be tween the murderer, and the friends of the deceafed who profecuted him, by caufing the malefactor to give unto them, or to the child or wife of him that was flain, a recompenfe which they called an eriach ^f. And thus we find in our Saxon laws (particularly thofe of king Athelftan ^g) the feveral weregilds, for homicide eftablifhed in progreffive order, from the death of the ceorl or peafant, up to that of the king himfelf ^h. And in the laws of king Henry I ⁱ, we have an account of what other offences were then redeemable by weregild, and what were not fo ^k. As therefore, during the continuance of this cuftom, a procefs was certainly given, for recovering the weregild by the party to whom it was due ; it feems that, when thefe offences by degrees grew no longer redeemable, the private procefs was ftill continued, in order to infure the infliction of punifhment upon the offender, though the party injured was allowed no pecuniary compenfation for the offence.

BUT, though appeals were thus in the nature of profecutions for fome atrocious injury committed more immediately againft an individual, yet it alfo was antiently permitted, that any fub-

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^d de M. G. c. 21.
^e And in another place, (c. 12.) “ Delictis, pro modu poenarum, equorum pecorumque numera convicti mulctantur. Pars mulctae regi vel civitati ; pars ipfi qui vindicatur, vel propinquis ejus, exfolvitur.”
^f Spenfer's ftate of Ireland, pag. 1513. edit. Hughes.
^g Tudic. Civit. Lund. Wilk. 71.
^h The weregild of a ceorl was 266 thrymfas, that of the king 30000 ; each thrymfa being equal to about a fhilling of our prefent money ^j The weregild of a fubject was paid entirely to the relations of the party flain : but that of the king was divided ; one half being paid to the public, the other to the royal family.
ⁱ c. 12.
^k In Turkey this principle is ftill carried fo far, that even murder is never profecuted by the officers of the government, as with us. It is the bufinefs of the next relations, and them only to revenge the flaughter of their kinfmen ; and if they rather choofe ( as they generally do) to compound the matter for money, nothing more is faid about it. (Lady M. W. Montague. Lett. 42.)
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ject
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ject might appeal another fubject of high-treafon, either in the courts of common law ^l, or in parliament, or (for treafons committed beyond the feas) in the court of the high conftable and marfhal. The cognizance of appeals in the latter ftill continues in force ; and fo late as 1631 there was a trial by battel awarded in the court of chivalry, on fuch an appeal of treafon ^m : but the firft was virtually abolifhed ⁿ by the ftatutes 5 Edw. III. c. 9. and 25 Edw. III. c. 24. and the fecond expreffly by ftatute 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 againft the parties themfelves, or their relations. The crimes againft the parties themfelves are larciny, rape, and arfon. And for thefe, as well as for maybem, the perfons robbed, ravifhed, maimed, or whofe houfes are burnt, may inftitute this private procefs. The only crime againft one's relation, for which an appeal can be brought, is that of killing him, by either murder or manflaughter. But this cannot be brought by every relation : but only by the wife for the death of her hufband, or by the heir male for the death of his anceftor ; which heirfhip was alfo confined, by an ordinance of king Henry the firft, to the four neareft degrees of blood ^o. It is given to the wife, on account of the lofs of her hufband : therefore, if fhe marries again, before or pending her appeal, it is loft and gone ; or, if fhe marries after judgment, fhe fhall not demand execution. The heir, as was faid, muft alfo be heir male, and fuch a one as was the next heir by the courfe of the common law, at the time of the killing of the anceftor. But this rule has three exceptions : 1. If the perfon killed leaves an innocent wife, fhe only, and not the heir, fhall have the appeal : 2. If there be no wife, and the heir be accufed of the murder, the perfon, who next to him would have been heir male, fhall bring the appeal : 3. If the

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^l Britt. c. 22.
^m By Donald lord Rea againft David Ramfey. (Rafhw. Vol. 2. Part. 2. pag. 122.)
ⁿ 1 Hal. P. C. 349.
^o Mirr. C. 2. §. 7.
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wife kills her hufband, the heir may appeal her of the death. And, by the ftatute of Gloucefter, 6 Edw. I. c. 9. all appeals of death muft be fued within a year and a day after the completion of the felony by the death of the party : which feems to be only declaratory of the old common law ; for in the Gothic conftitutions we find the fame “ praefcriptio annalis, quae currit adverfus actorem, fi de homicida ei non conftat intra annum a caede facta, nec quenquam interea arguat et accufet ^p.”

THESE appeals may be brought, previous to any indictment ; and, if the appellee be acquitted thereon, he cannot be afterwards indicted for the fame offence. In like manner as by the old Gothic conftitution, if any offender gained a verdict in his favour, when profecuted by the party injured, he was alfo underftood to be acquitted of any crown profecution for the fame offence ^q : but, on the contrary, if he made his peace with the king, ftill he might be profecuted at the fuit of the party. And fo, with us, if a man be acquitted on an indictment of murder, or found guilty, and pardoned by the king, ftill he may, by virtue of ftatute 3 Hen. VII. c. 1. be profecuted by appeal for the fame felony, not having as yet been punifhed for it : though, if he hath been found guilty of manflaughter on an indictment, and hath had the benefit of clergy, and fuffered the judgment of the law, he cannot afterwards be appealed. For it is a maxim of law, that “memo his punitur pro eodem delicto.”

IF the appellee be found guilty, he fhall fuffer the fame judgment, as if he had been convicted by indictment : but with this remarkable difference ; that on an indictment, which is at the fuit of the king, the king may pardon and remit the execution ; on an appeal, which is at the fuit of a private fubject, 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 ^r. In like manner as, while the weregild continued to

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^p Stiernh. de jure Goth. l. 3. c. 4.
^q Ibid. l. 1. c. 5.
^r 2 Hawk. P. C. 392.
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be paid as a fine for homicide, it could not be remitted by the king's authority ^s. And the antient ufage was, fo late as Henry the fourth's time, that all the relations of the flain fhould drag the appellee to the place of execution ^t : a cuftom, founded upon that favage fpirit of family refentment, which prevailed univerfally through Europe, after the irruption of the northern nations, and is peculiarly attended to in their feveral 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 ftate. However, the punifhment of the offender may be remitted and difcharged by the concurrence of all parties interefted ; and as the king by his pardon may fruftrate an indictment, fo the appellant by his releafe may difcharge an appeal ^u : “ nam quilibet poteft renunciare “ juri, pro fe introducto.”

THESE are the feveral methods of profecution inftituted by the laws of England for the punifhment of offences ; of which that by indictment is the moft general. I fhall therefore confine my fubfequent obfervations principally to this method of profecution ; remarking by the way the moft material variations that may arife, from the method of proceeding by either information or appeal.

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^a LL. Edm. §. 3.
^t M. 11 Hen. IV. 12. 3 Inft. 131.
^u 1 Hal. P. C. 9.
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