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, as Blackstone observes, that might be applied to very oppressive purposes.

When the grand jury have heard the evidence, if they think it a groundless accusation, they endorse on the back of the bill, not a true bill, or not found; and then the party is discharged without farther answer. But a fresh bill may be afterwards preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then endorse upon it a true bill. 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, as Blackstone remarks, so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the crown of any capital offence, unless by the unanimous voice of twentyfour of his equals and neighbours; 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 on his trial. And the indictment, when so found, is publicly delivered in court.

The only species of proceeding at the suit of the crown, without a previous indictment, or presentment by a grand jury, is now that of information. An information is a complaint or accusation exhibited by the proper officer of the crown against a person, informing the court that such person has been guilty of some criminal offence, either immediately against the crown, or against a private person, which, from its enormity or dangerous tendency, 1 State Trials, iv. 183.

Y

the public good requires should be immediately restrained and punished.1 Informations are of two sorts; first, those which are partly at the suit of the queen, and partly at that of the subject; and, secondly, such as are only in the name of the queen. The former are usually brought upon penal statutes, which inflict a penalty upon the conviction of the offender, one part to the use of the queen, and another to the use of the informer. The latter are also of two kinds; first, those that are truly and properly the queen's suits, and filed ex officio by her own immediate officer, the attorney-general: secondly, those in which though the queen is the nominal prosecutor, yet it is at the relation of some private person; and they are filed by the queen's coroner and attorney in the court of queen'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 queen's own prosecutions, filed er officio by her own attorney-general, are properly such enormous misdemeanours as peculiarly tend to disturb or endanger her government, or to molest or affront her in the regular discharge of her royal functions. For offences so high and dangerous, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal. The

13 New Abr. 164. There are also informations in the nature of a civil suit, which are filed by the attorney-general in the court of exchequer or the court of chancery, on behalf of the crown, in matters of property.

2 See the limitation of these prosecutions, by stat. 13 Eliz. c. v., to one year after the offence, when brought by a common informer, where part of the penalty is given to the prosecutor; two years more, when brought on behalf of the crown; and two years from the commission of the offence, where the forfeiture is originally given to the

crown.

3 Blackst. Com. b. iv. c. xxiii. p. 308.

object 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. But this last species of information cannot be filed without express direction from the court of queen's bench; and though the granting permission to file such an information is a matter of judicial discretion, the court have uniformly observed certain salutary rules and restrictions in the exercise of that power. The proceeding by information is as ancient as the common law itself:4 but informations of every kind are confined by the constitutional law to mere misdemeanours only; for wherever any capital offence or felony 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 it must be remembered, that as to those offences in which informations are permitted by the law, the same process is issued, the same pleas are allowed, the same trial by jury had, and the same judgment given by the same judges, as if the prosecution had originally been by indictment. There is one species of informations still further regulated by stat. 9 Anne c. xx.; 12 Hawk. P. C. c. xxvi. § 1. 2 Blackst. Com. ibid.

3 Stat. 4 and 5 Wm. and Mary, c. xviii.

41 Shower, 118.

The proceedings in the star-chamber were, under stat. 3 Hen. VII. c. i., by information. That court caused the ancient legal and orderly jurisdiction of the king's bench, as custos morum of the nation, to fall into disuse, which was again revived on the abolition of the star-chamber. Blackst. b. iv. c. xxiii. p. 309, 110.

namely, those in the nature of a writ of quo warranto; which is a mandatory letter in the queen's name, requir ing the person to whom it is directed, to shew by what authority or title he holds or exercises some office or franchise, which he is alleged to have usurped or intruded into. 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 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 modes of prosecution recognised by the law of England as it now stands, of which that by indictment is the most

common.

The next step in a criminal proceeding, if the accused be not in custody, is issuing process to bring him to answer the indictment; for though he may be indicted in his absence, the indictment cannot be tried unless he personally appears, according to the rules of justice in all cases, and the express provision of stat. 28 Ed. III. c. iii. in capital ones.1

On an indictment for any misdemeanour, the proper process is a venire facias, in the nature of a summons to the person indicted, followed by a distress infinite on his lands; and if the sheriff returns that he has no lands in his bailiwick, then three successive writs of capias are issued, commanding the sheriff to take his body, and have him at the next assizes. But on indictment for treason or felony, a capias is the first process; and in cases of

1 The civil law follows the same rule, but more generally. Ulpian says, "Absentem in criminibus damnari non debere, Divus Trajanus Julio Frontoni rescripsit." L. 5 ff. De Pœnis.

misdemeanours, it is now the usual practice for any judge of the queen's bench, under stat. 48 Geo. III. c. lviii., on certificate of an indictment found, to issue his warrant immediately, in order to bring in the defendant. Both in cases of treason or felony, and of misdemeanours, the accused may, by a peculiar proceeding in which great exactness is required, be outlawed. And the punishment for outlawries upon indictments for misdemeanours is the same as for outlawries upon civil actions; but an outlawry in treason or felony amounts to a conviction and attainder of the offence charged in the indictment, as if the offender had been found guilty by a jury of his country. His life is, however, still under the protection of the law, though it was otherwise anciently.2

Thus much for process to bring in the offender after indictment found; during which stage of the prosecution it is that writs of certiorari facias are usually had, though they may be had at any time before trial, to certify and remove the indictment, with the proceedings thereon, from any inferior court of criminal jurisdiction, into the court of queen's bench, which is the sovereign ordinary court of justice in causes criminal.3

At this stage of prosecution also it is, that indictments found by the grand jury against a peer must (in cases of treason or felony) be certified and transmitted, by virtue of a writ of certiorari, into the court of parliament, or into that of the lord high steward of Great Britain; and that in places of exclusive jurisdiction, as the two universities, indictments must be delivered (upon challenge and claim of cognisance) to the courts therein established by

1 2 Hale, P. C. 205.

2 Mirror, c. iv. Co. Litt. 128.

3 This must be by leave of the court of queen's bench, or some judge thereof, except in the case of the attorney-general. Stat. 5 and 6 Wm. IV. c. xxxiii. § 1.