unless particularly enabled by an 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 and 3 Edw. VI. c. 24, he is now indictable in the county where the party died. And, by statute 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea or out of England, or vice versa, the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. 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, 33 Hen. VIII. c. 23, 35 Hen. VIII. c. 2, and 5 and 6 Edw. VI. c. II. But, in general, all offences must be inquired into as well as tried in the county where the fact is committed. Yet, if larceny be committed in one county and the goods carried into another, the offender may be indicted in either, for the offence is complete in both, or he may be indicted in England for larceny in Scotland and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdom goods that have been stolen in another. But for robbery, burglary, and the like, he can only be indicted where the fact was actually committed; for though the carrying away and keeping of the goods is a continuation of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction.

Finding.

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," or (which is the better way) "not found," and then the party is discharged without further 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 "bila 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. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree; and the indictment, when so found, is publicly delivered into court.

Indictments must have a precise and sufficient certainty. By statute I 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, unless where the place is laid, not merely as a venue, but as part of the description of the fact. 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 offence committed; 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 offence 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 offence, 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." 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 offence. Also, 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. Lastly, in indictments the value of the thing which is the subject or instrument of the offence 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 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.

Informations.

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 book), only carried on by a criminal instead of a civil process.

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 misdemeanours as peculiarly tend to disturb or endanger his government, or to molest or affront him in the regular discharge of his royal functions. For offences 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; which power, thus 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, wherein provision is wisely made 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 misdemeanours, riots, batteries, libels, and other immoralities of an atrocious kind, 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 offence arises; after which,

if the defendant be found guilty, the court must be resorted to for his punishment.

But these informations (of every kind) are confined by the constitutional law to mere misdemeanors only; for, whenever 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.

There is one species of informations still further regulated by statute 9 Anne, c. 20, viz., those in the nature of a writ of quo warranto; which was shown, in the preceding book, 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.

Chapter XXIV.

OF PROCESS UPON AN INDICTMENT.

When Offender Has Fled.

318-322.

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. We have hitherto supposed the offender to be in custody before the finding of the indictment, in which case he is immediately (or as soon as convenience permits) to be arraigned thereon. But if he hath fled or secretes himself in capital cases, or hath not in smaller misdemeanours been bound over to appear at the assizes or sessions, 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; for the indictment cannot be tried unless he personally appears, according to the rules of equity 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.

For Petit Misdemeanours.

The proper process on an indictment for any petit misdemeanour, or on penal statute, is a writ of venire facias, which is in the nature of a summons to cause the party to appear. And if by

the return to such venire it appears that the party hath lands in the county whereby he may be distrained, then a distress infinite shall be issued from time to time till he appears. But if the sheriff returns that he hath no lands in his bailiwick (then, upon his nonappearance), a writ of capias shall issue, which commands the sheriff to take his body and have him at the next assizes: and if he cannot be taken upon the first capias, a second and third shall issue, called an alias and a pluries capias. But on indictments for treason or felony a capias is the first process; and for treason or homicide only one shall be allowed to issue, or two in the case of other felonies, by statute 25 Edw. III. c. 14, though the usage is to issue only one in any felony, the provisions of this statute being in most cases found impracticable. And so, in the case of misdemeanours, it is now the usual practice for any judge of the court of king's bench, upon certificate of an indictment found, to award a writ of capias immediately, in order to bring in the defendant.

Chapter XXV.

OF ARRAIGNMENT AND ITS INCIDENTS.

322-332.

When the offender either appears voluntarily to an indictment, or was before in custody, or is brought in upon criminal process to answer it in the proper court, he is immediately to be arraigned thereon; which is the fifth stage of criminal prosecution. The Arraignment.

To arraign is nothing else but to call the prisoner to the bar of the court, to answer to the matter charged upon him in the indictment. The prisoner is to be called to the bar by his name; and it is laid down in our ancient books that, though under an indictment of the highest nature, he must be brought to the bar without irons or any manner of shackles or bonds, unless there be evident danger of an escape, and then he may be secured with irons.

When he is brought to the bar, he is called upon by name to hold up his hand: which, though it may seem a trifling circumstance, yet is of this importance, that by the holding up of his hand constat de persona, he owns himself to be of that name by which he is called. However, it is not an indispensable ceremony; for, being calculated merely for the purpose of identifying the person, any other acknowledgment will answer the purpose as well: therefore, if the prisoner obstinately and contemptuously refuse to hold up his hand, but confesses he is the person named, it is fully sufficient.