Page:The American Cyclopædia (1879) Volume V.djvu/492

488 CRIMINAL LAW There was still, however, nothing like the modern proceeding upon a jury trial. The ju- rors were not expected to decide upon evidence produced by the parties, but upon their own knowledge or information collected by them. The direction of the judge was, that whereas such a man is charged with such a crime, the jury are to make known the truth thereof. Prosecutions for crime were usually upon ap- peal of a private party. Any one of legal ca- pacity to sue could prosecute for treason, but ordinarily only near kindred by blood were admitted to bring suit for homicide ; a woman could prosecute only for the death of her hus- band, or for a rape committed upon herself, and the appeal in the former case is said by Bracton to have been only de morte viri inter IracJiia interfecti. In other cases the party injured was in general the prosecutor. There was, however, as before mentioned, another mode of charging a person with crime, viz., perfamam patrice, a sort of indictment by the patria or jury. It does not appear how the prosecution was conducted in such a case ; but as there was never any attempt to determine facts according to rules of evidence, it is probable that the first finding or indictment was conclu- sive, unless the party accused purged himself or took some exception to the jury. It would exceed our limit to pursue the history of the English criminal law through all its changes. Passing to its present state, we find forms of proceeding eminently adapted to sound judicial investigation. The function of the patria, or jury of inquisition, spoken of by Bracton, is now performed by a grand jury, not less than 12 nor more than 23 in number, upon whose indictment most criminal cases are brought before the courts for trial. The exceptions are : 1, cases of homicide where a coroner's inquisi- tion has been returned; 2, actions which, by statute, may be brought by a private prosecu- tor, or informations by the master of the crown office upon the relation of a private individual ; 3, informations filed ex officio by the attorney general in cases of atrocious misdemeanor en- dangering the government. All criminal pros- ecutions, except the few cases where by statute a common informer is authorized to bring an ac- tion, are in the name of the king, and conduct- ed by his law officers. Private suits for crimes, which were formerly allowed under the name of appeals of felony, were long since practically abandoned, and were finally abolished by statute 59 George III., c. 46. So also the wager of bat- tle by the same statute, and wager of law by 2 and 4 William IV., c. 42. The indictment, which is the basis of the arraignment and trial of criminals, was formerly required to be drawn with great technical strictness, and was often quashed for defect of form. Thus it was ne- cessary to set forth the full name of the person charged and a designation of his business and place of residence, also the time and place when and where the offence was committed. Certain technical words were also required, as descriptive of the crime charged, as (when pleadings were in Latin) the words proditorie et contra ligientice suce debitum, in treason; murdravit, in an indictment for murder; ra- puity in rape ; and so in other cases. No ex- pressions equivalent in meaning could be sub- stituted ; and after the pleadings were, by stat- ute 4 George II., c. 26 (1V30), converted into English, the corresponding vernacular terms, as "murdered," "ravished," &c., were re- tained with the same strictness. And so in felonies it was necessary to charge that the act was done felonice ; in burglary, lurglariter. In indictments for murder it was required also to state the dimensions of the wound, and in all indictments the value of the thing which was the subject of the offence, as in larceny, or with which the offence was committed, as in murder. In the former case, it was said to be required in order to distinguish whether it was grand or petty larceny ; in the latter case, because the instrument with .which a homi- cide was committed was forfeited as a deo- dand. This absurd regard to mere form has been, however, abrogated: 1st, by statute 7 George IV., c. 64, which prohibited an arrest of judgment or a reversal on writ of error for any of these formal defects, but which still left the objections to be taken advantage of by de- murrer ; and finally by 14 and 15 Victoria, c. 100 (1851), commonly called Lord Campbell's act, by which the court is directed to disregard the omission of mere formal words, as "with force and arms," or "against the peace," &c., or any mistake in time or place; and a state- ment of the manner or means by which the de- ceased came to his death is dispensed with, and amendments of indictments either in mat- ters of form or substance are allowed upon such terms as the court shall deem reasonable. As to the designation of crimes and their pun- ishments, the English law was until a recent period in a chaotic state. Statutes had been accumulated according to the exigencies oc- curring at different times, until, by their num- ber, such was the difficulty of determining what was obsolete and what in force, and of reconciling apparently conflicting provisions, that practically the common people had no knowledge of the penal laws to which they were subject, and cases were constantly occur- ring of the trial and conviction of criminals charged with offences, the nature of which, as defined by law, and the penalties prescrib- ed therefor, they were entirely ignorant of; their ignorance, according to the old maxim, ignorantia juris non excusat, being no defence. So also the extreme and disproportioned se- verity of ancient laws enacted in a turbulent period, or in an unsettled state of society, still prevailed in England at the beginning of the present century. According to Blackstone, there were 160 offences which by various acts of parliament had been declared felo- nies without benefit of clergy, that is to say, punishable by death. It will be sufficient