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“INDIES, LAWS OF THE”

by a court of record for “contempt of court” it is the only remedy, except where a statute creates another remedy, e.g. by trial before a court of summary jurisdiction.

The form of an indictment is still in the main regulated by the old common law rules of pleading, which as to civil pleadings were often amended during the 19th century, and finally abolished under the judicature Acts.

An indictment may consist of one or more counts charging different offences. Each count consists of three parts: (1) the commencement, (2) the statement, (3) the conclusion. The formal commencement runs thus: “Surrey to wit.” The first count begins “ The jurors for our Lord the King (i.e. the grand jurors) upon their oath present that, &c.”; and the subsequent counts begin, the “ jurors aforesaid on their oath aforesaid do further present.” The first words, which are placed in the margin of the document, are the “venue,” i.e. the county or district over which extends the jurisdiction of the court before which the indictment is found. Subject to certain statutory exceptions it is necessary to prove that the acts or omissions alleged to constitute the offence occurred within that area. The conclusion consists of the words following: “against the form of the statute (or statutes) in that case made and provided, and against the peace of our Lord the King, his crown and dignity.” Where the offence is statutory the whole phrase is used; where it is at common law only the second part is used. A formal conclusion is not now essential to the validity of the indictment, but from inveterate habit is in continued use. The statement sets forth the circumstances alleged to constitute the offence, i.e. the accusation made. There are still in force a number of rules as to the proper elements in the statement; but in substance it is only necessary to set forth the facts alleged against the accused with accuracy and sufficient precision as to the time and place and circumstances of the alleged offence, and to indicate whether felony or misdemeanour are charged, and so to frame the statement as to indicate a definite offence for which a lawful sentence may be imposed.

The following example illustrates the form of the statement:- “ That A. B. on the first day of June in the year of our Lord 1906 one oak tree of the value of five pounds the property of C. D. then growing in a certain park of the said C. D. situate in the parish of E. in the county of F. feloniously did steal take and carry away contrary to the statute, &c."

Only one offence should be stated in one count; and separate and distinct felonies should not be charged in the same indictment. If they are, the court makes the prosecution choose one upon which to proceed. This rule is altered by statute in certain cases: e.g. by allowing a limited number of separate thefts, or receiving of stolen property to be included in the same indictment. Misdemeanours and felonies may not be included in the same indictment because of the difference of procedure on the trial; but any number of misdemeanours may be included in different counts of the same indictment, subject to the right of the court to order separate trials or to quash the indictment if it is rendered vexatious by the agglomeration of charges.

There is no general limitation of the time within which indictments may lawfully be preferred; but various limitations have been fixed by statute for certain offences, e.g. in the case of certain forms of treason, of riot, of night poaching and of corrupt and illegal practices at elections. In this respect English law differs from European law, in which limitations of time for prosecution are the rule and not the exception.

Until the mitigation of the draconic severity of the English law in the early part of the 19th century, little or no power existed of amending defective statements or indictments, and the courts in favorem 'vitae insisted strictly on accurate pleading and on proof of the offences exactly as charged. Since 1827 numerous enactments have been passed for getting rid of these technicalities, which led to undeserved acquittals, and since 1851 the courts have had power to disregard technical objections to the form of indictment and to amend in matters not essential in case of variance between the indictment and the evidence. These changes apply to ordinary offences; but for the most part do not touch charges of treason, as to which the old law in the main still applies. At the present time the looseness oi pleading in criminal cases is carried almost too far; for while there is no danger in such looseness when times are quiet and when law is administered by the judges of the High Court in England, yet when crimes of a certain character are committed in times of great political excitement and the law is administered by an inferior judiciary, there may be some danger of injustice if the strictness of pleading and procedure is too much relaxed. In the Criminal Code drafted by Sir James Fitz Iarnes Stephen and revised by a judicial commission (Lord Blackburn and Lords justices Lush and Barry), it was proposed to substitute for the old form of indictment a statement of the particulars of the offence with a reference to the section of the code defining the offence.

The law of Ireland as to indictments is in substance the same as that of England; but is to a certain extent expressed in different statutes.

In Scotland the terms indictment or criminal letters are used to express the arte d' accusation. But except in the case of high treason there is no grand jury, and the indictment is filed like an English criminal information by the lord advocate or one of his deputies: and it is only by order of the court of justiciary that a prosecution can be instituted without the general or particular assent of the lord advocate. By the Criminal Procedure Scotland Act 1887 the form of Scots indictments is much simplified. They are drawn in the second and not in the third person.

In those of the British colonies in which by settlement or statute the English criminal law runs, the form of indictment is substantially the same, and is found by a grand jury as in England. But in certain colonies, e.g. the Australian states, an indictment by a public officer without the intervention of a grand jury has been adopted. In India and British Asiatic possessions the procedure is regulated by the Indian Procedure Code or its adaptations. In South Africa indictments are framed under Roman Dutch law as modihed by local legislation.

In the United States prosecution or indictment by a grand jury is the rule: the form of indictment is the same, substituting the state or commonwealth of the United States for references to the king, and the conclusions “ against the form of the statute ” and “against the peace” are still in use.  (W. F. C.) 


“INDIES, LAWS OF THE,” in the colonial history of Spain, a general term designative either (1) of certain codifications of legislation for the colonies listed below, and especially the compilation of 1680; or (2) of the whole body of colonial law, of which those compilations were but a selection, and which was made up of a multitude of royal cédulas, orders, letters, ordinances, provisions, instructions, autos, dispatches, pragmatics and laws-all emanating from the crown (or crown and cortes) and all of equal force-that were passed through various departments of government to various officers and branches of the colonial administration, or between the different departments of government in Spain. The transfer of Spanish law to Ultramar began with the first days of the Conquest; and especially the civil law was translated with comparatively slight alteration. Many things, however, peculiar to colonial conditions-the special relations of the crown and the papacy in America, the repartimientos and encomiendas (“divisions of lands” and “commendations,” a system of patronage, or modified slavery) of the Indians, the development of African slavery, questions of natural and international law, the spread of discovery and establishment of new settlements and administrative areas, the sales and grants of public lands, the working of the mines—necessitated the organization of a great mass of special law, made up of a body of general doctrine and a vast quantity of administrative applications, la matéria de Indias—to which references are already found in the time of Ferdinand. The general doctrine was applicable everywhere in Ultramar, and the difficult and inconstant communication between the provinces, and other considerations, early counselled some work of codification. The first efforts to this end were begun in Mexico in 1525; a volume was published in 1563, and other