and all these to ascertain the intent.

So in larce

nies also, the words "feloniously took and carried away," are necessary to every indictment; for these only can express the very offence. Also in 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. 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 remaining methods of prosecution are without any previous finding by a jury. So that 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.

Ill. 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, only carried on by a criminal instead of a civil process. No prosecution upon any penal statute, the suit and benefit whereof are limited in part to the king

and in part to the prosecutor, can be brought by any common informer after one year is expired since the commission of the offence; nor on behalf of the crown after the lapse of two years longer; nor, where the forfeiture is originally given only to the king, can such prosecution be had after the expiration of two years from the commission of the offence.

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 misdemeanors, 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. 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 misdemeanors, 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, he must resort to the court for his punish

ment.

There can be no doubt but that this mode of prosecution, by information (or suggestion) filed on record by the king's attorney general, or by his coroner or master of the crown-office in the court of king's bench, is as ancient as the common law itself. These informations are confined by the constitutional law to mere misdemeanors only: for, wherever 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.

The oppressive use of them, in the times 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. 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 (which now seems to be too small a sum) 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 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.

There is one species of informations, still further regulated by statute 9 Ann. c. 20. viz. those in the nature of a writ of quo warranto; 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 com menced 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.

These are all the methods of prosecution at the suit of the king. There yet remains another, which is merely at the suit of the subject, and is called an appeal.

IV. An appeal, in the sense wherein it is here used, does not signify any complaint to a superior

court of an injustice done by an inferior one, which is the general use of the word; but it here means an original suit, at the time of its first commencement. An appeal therefore, when spoken of as a criminal prosecution, denotes an accusation by a private subject against another, for some heinous crime; demanding punishment on account of the particular injury suffered, rather than for the offence against the public.

These are the several methods of prosecution instituted by the laws of England for the punishment of offences; of which that by indictment is the most general. I shall therefore confine my subsequent observations principally to this method of prosecution; remarking by the way the most material variations that may arise, from the method of proceeding by either information or appeal.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

WE have hitherto supposed the offender to be in custody before the finding of the indictment; in which case he is immediately to be arraigned thereon. But if he hath fled, or secretes himself in capital cases; or hath not, in smaller misdemeanors, been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he pre